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Law of Property Act 1925

1925 CHAPTER 20 15 and 16 Geo 5

X1An Act to consolidate the enactments relating to conveyancing and the law of property in England and Wales.

[9th April 1925]

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Editorial Information

X1A dagger appended to a marginal note means that it is no longer accurate

Modifications etc. (not altering text)

C1Act applied by Land Registration Act 1925 (c. 21), ss. 36, 38, 69(3), S.R. & O. 1925/1093 (Rev. XII, p. 81: 1925, p. 717)

Act applied by Agriculture (Miscellaneous Provisions) Act 1941 (c. 50), s. 8(4)

Act applied by Finance Act 1949 (c. 47), s. 40(4)(b) Act applied by Highways Act 1959 (c. 25), s. 81(3)

Act applied by Housing Act 1964 (c. 56), s. 80(5) Act applied by Building Act 1984 (c. 55, SIF 15), s. 107(2)

Act applied (1.11.1993) by 1993 c. 28, s. 69(3); S.I. 1993/2134, arts. 25 Act applied (5.1.1994) by 1990 c. 43, s. 81A(8) (as inserted (5.1.1994) by 1993 c. 40, ss. 10(2), 12(1)(2)

Act applied (21.9.1995 for E. specified purposes and 1.4.2000 for E. in so far as not already in force and 14.9.2001 for W.) by 1990 c. 43, s. 78P(11) (as inserted 21.9.1995 for E. specified purposes and 1.4.2000 for E. in so far as not already in force and 14.9.2001 for W.) by 1995 c. 25, s. 57 (with ss. 7(6), 115, 117); S.I. 2000/340, art. 2; S.I. 2001/3211, art. 2(a)

Act applied (17.12.1996) by 1996 c. 53, s. 88(5)(b); S.I. 1996/2842, art. 3

Act applied (1.1.1997) by 1996 c. 47, s. 23(2) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

Act applied (19.9.2007) by the London Local Authorities Act 2007 (c. ii), s. 77(2)

C3Words of enactment omitted under authority of Statute Law Revision Act 1948 (c. 62), s. 3

C4Definition of "trust for sale" in this Act applied (25.9.1991) by Land Compensation Act 1961 (c. 33, SIF 28:1), Sch. 3 para. 7(4) (as added by Planning and Compensation Act 1991 (c. 34, SIF 28:1), s. 66, Sch. 14 para. 2; S.I. 1991/2067, art. 3) Definition of "conveyance" in this Act applied (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 182, 225(2), Sch. 23 para. 7(1) Definition of "convey" in this Act applied (19.12.1991) by Commercial and Private Bank Act 1991 (c. xxii), s. 11(7)

C5Act (except s. 75) amended (1.1.1992) by S.I. 1991/2684, arts. 2, 4, Sch. 1

C6Act applied (1.3.2009 with application as mentioned in art. 1(2) of the amending S.I.) by The Environmental Damage (Prevention and Remediation) Regulations (S.I. 2009/153), {reg. 27(8)}

Commencement Information

I1Act wholly in force at 1.1.1926, see s. 209(2)

Part I E+W General Principles as to Legal Estates, Equitable Interests and Powers

1 Legal estates and equitable interests.E+W

(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—

(a)An estate in fee simple absolute in possession;

(b)A term of years absolute.

(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—

(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;

(b)A rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute;

(c)A charge by way of legal mortgage;

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1 and any other similar charge on land which is not created by an instrument;

(e)Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rentcharge.

(3)All other estates, interests, and charges in or over land take effect as equitable interests.

(4)The estates, interests, and charges which under this section are authorised to subsist or to be conveyed or created at law are (when subsisting or conveyed or created at law) in this Act referred to as “legal estates,” and have the same incidents as legal estates subsisting at the commencement of this Act; and the owner of a legal estate is referred to as “an estate owner” and his legal estate is referred to as his estate.

(5)A legal estate may subsist concurrently with or subject to any other legal estate in the same land in like manner as it could have done before the commencement of this Act.

(6)A legal estate is not capable of subsisting or of being created in an undivided share in land or of being held by an infant.

(7)Every power of appointment over, or power to convey or charge land or any interest therein, whether created by a statute or other instrument or implied by law, and whether created before or after the commencement of this Act (not being a power vested in a legal mortgagee or an estate owner in right of his estate and exercisable by him or by another person in his name and on his behalf), operates only in equity.

(8)Estates, interests, and charges in or over land which are not legal estates are in this Act referred to as “equitable interests,” and powers which by this Act are to operate in equity only are in this Act referred to as “equitable powers.

(9)The provisions in any statute or other instrument requiring land to be conveyed to uses shall take effect as directions that the land shall (subject to creating or reserving thereout any legal estate authorised by this Act which may be required) be conveyed to a person of full age upon the requisite trusts.

(10)The repeal of the Statute of Uses (as amended) does not affect the operation thereof in regard to dealings taking effect before the commencement of this Act.

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Amendments (Textual)

Modifications etc. (not altering text)

2 Conveyances overreaching certain equitable interests and powers.E+W

(1)A conveyance to a purchaser of a legal estate in land shall overreach any equitable interest or power affecting that estate, whether or not he has notice thereof, if—

(i)the conveyance is made under the powers conferred by the M1Settled Land Act, 1925, or any additional powers conferred by a settlement, and the equitable interest or power is capable of being overreached thereby, and the statutory requirements respecting the payment of capital money arising under the settlement are complied with;

(ii)the conveyance is made by [F2trustees of land] and the equitable interest or power is at the date of the conveyance capable of being overreached by such trustees under the provisions of subsection (2) of this section or independently of that subsection, and [F2the requirements of section 27 of this Act respecting the payment of capital money arising on such a conveyance] are complied with;

(iii)the conveyance is made by a mortgagee or personal representative in the exercise of his paramount powers, and the equitable interest or power is capable of being overreached by such conveyance, and any capital money arising from the transaction is paid to the mortgagee or personal representative;

(iv)the conveyance is made under an order of the court and the equitable interest or power is bound by such order, and any capital money arising from the transaction is paid into, or in accordance with the order of, the court.

[F3(1A)An equitable interest in land subject to a trust of land which remains in, or is to revert to, the settlor shall (subject to any contrary intention) be overreached by the conveyance if it would be so overreached were it an interest under the trust.]

(2)[F4Where the legal estate affected is subject to [F5a trust of land], then if at the date of a conveyance made after the commencement of this Act [F5by the trustees], the trustees (whether original or substituted) are either]

(a)two or more individuals approved or appointed by the court or the successors in office of the individuals so approved or appointed; or

(b)a trust corporation,

[F4any equitable interest or power having priority [F5to the trust]] shall, notwithstanding any stipulation to the contrary, be overreached by the conveyance, and shall, according to its priority, take effect as if created or arising by means of a primary trust affecting the proceeds of sale and the income of the land until sale.

(3)The following equitable interests and powers are excepted from the operation of subsection (2) of this section, namely—

(i)Any equitable interest protected by a deposit of documents relating to the legal estate affected;

(ii)The benefit of any covenant or agreement restrictive of the user of land;

(iii)Any easement, liberty, or privilege over or affecting land and being merely an equitable interest (in this Act referred to as an “equitable easement”);

(iv)The benefit of any contract (in this Act referred to as an “estate contract”) to convey or create a legal estate, including a contract conferring either expressly or by statutory implication a valid option to purchase, a right of pre-emption, or any other like right;

(v)Any equitable interest protected by registration under the M2Land Charges Act, 1925, other than—

(a)an annuity within the meaning of Part II. of that Act;

(b)a limited owner’s charge or a general equitable charge within the meaning of that Act.

(4)Subject to the protection afforded by this section to the purchaser of a legal estate, nothing contained in this section shall deprive a person entitled to an equitable charge of any of his rights or remedies for enforcing the same.

(5)So far as regards the following interests, created before the commencement of this Act (which accordingly are not within the provisions of the M3Land Charges Act, 1925), namely—

(a)the benefit of any covenant or agreement restrictive of the user of the land;

(b)any equitable easement;

(c)the interest under a puisne mortgage within the meaning of the Land Charges Act, 1925, unless and until acquired under a transfer made after the commencement of this Act;

(d)the benefit of an estate contract, unless and until the same is acquired under a conveyance made after the commencement of this Act;

a purchaser of a legal estate shall only take subject thereto if he has notice thereof, and the same are not overreached under the provisions contained or in the manner referred to in this section.

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Amendments (Textual)

Modifications etc. (not altering text)

C11S. 2(1) applied (1.11.1993) with modifications by 1993 c. 28, s. 34(3) (with ss. 94(2), 95); S.I. 1993/2134, arts. 2, 5

Marginal Citations

3 Manner of giving effect to equitable interests and powers.E+W

(1)All equitable interests and powers in or over land shall be enforceable against the estate owner of the legal estate affected in manner following (that is to say):—

(a)Where the legal estate affected is settled land, the tenant for life or statutory owner shall be bound to give effect to the equitable interests and powers in manner provided by the M4Settled Land Act, 1925;

F6(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)[F7In any other case], the estate owner shall be bound to give effect to the equitable interests and powers affecting his estate of which he has notice according to their respective priorities. This provision does not affect the priority or powers of a legal mortgagee, or the powers of personal representatives for purposes of administration.

F6(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where, by reason . . . F8of an equitable right of entry taking effect, or for any other reason, a person becomes entitled to require a legal estate to be vested in him, then and in any such case the estate owner whose estate is affected shall be bound to convey or create such legal estate as the case may require.

(4)If any question arises whether any and what legal estate ought to be transferred or created as aforesaid, any person interested may apply to the court for directions in the manner provided by this Act.

(5)If the F9. . . estate owners refuse or neglect for one month after demand to transfer or create any such legal estate, or if by reason of their being out of the United Kingdom or being unable to be found, or by reason of the dissolution of a corporation, or for any other reason, the court is satisfied that the transaction cannot otherwise be effected, or cannot be effected without undue delay or expense, the court may, on the application of any person interested, make a vesting order transferring or creating a legal estate in the manner provided by this Act.

(6)This section does not affect a purchaser of a legal estate taking free from an equitable interest or power.

[F10(7)The county court has jurisdiction under this section where the land which is to be dealt with in the court does not exceed [F11£30,000] in capital value F12 . . .]

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Amendments (Textual)

F7Words in s. 3(1)(c) substituted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 4(3) (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

F8Words repealed by Reverter of Sites Act 1987 (c. 15, SIF 98:1). ss. 6(1), 8(2)(3)(4), Sch.

F9Words in s. 3(5) repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

F11Words in s. 3(7) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt. I (with art. 12)

F12Words in s. 3(7) omitted (1.7.1991) by virtue of S.I. 1991/724, art. 2(8), Sch. Pt. I (with art. 12)

Modifications etc. (not altering text)

C12S. 3 extended (1.7.1991) by S.I. 1991/724, art. 2(3) (with art. 12)

Marginal Citations

4 Creation and disposition of equitable interests.E+W

(1)Interests in land validly created or arising after the commencement of this Act, which are not capable of subsisting as legal estates, shall take effect as equitable interests, and, save as otherwise expressly provided by statute, interests in land which under the Statute of Uses or otherwise could before the commencement of this Act have been created as legal interests, shall be capable of being created as equitable interests:

Provided that, after the commencement of this Act (and save as hereinafter expressly enacted), an equitable interest in land shall only be capable of being validly created in any case in which an equivalent equitable interest in property real or personal could have been validly created before such commencement.

(2)All rights and interests in land may be disposed of, including—

(a)a contingent, executory or future equitable 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.

(3)All rights of entry affecting a legal estate which are exercisable on condition broken or for any other reason may after the commencement of this Act, be made exercisable by any person and the persons deriving title under him, but, in regard to an estate in fee simple (not being a rentcharge held for a legal estate) only within the period authorised by the rule relating to perpetuities.

5 Satisfied terms, whether created out of freehold or leasehold land to cease.E+W

(1)Where the purposes of a term of years created or limited at any time out of freehold land, become satisfied either before or after the commencement of this Act (whether or not that term either by express declaration or by construction of law becomes attendant upon the freehold reversion) it shall merge in the reversion expectant thereon and shall cease accordingly.

(2)Where the purposes of a term of years created or limited, at any time, out of leasehold land, become satisfied after the commencement of this Act, that term shall merge in the reversion expectant thereon and shall cease accordingly.

(3)Where the purposes are satisfied only as respects part of the land comprised in a term, this section shall have effect as if a separate term had been created in regard to that part of the land.

6 Saving of lessors’ and lessees’ covenants.E+W

(1)Nothing in this Part of this Act affects prejudicially the right to enforce any lessor’s or lessee’s covenants, agreements or conditions (including a valid option to purchase or right of pre-emption over the reversion), contained in any such instrument as is in this section mentioned, the benefit or burden of which runs with the reversion or the term.

(2)This section applies where the covenant, agreement or condition is contained in any instrument—

(a)creating a term of years absolute, or

(b)varying the rights of the lessor or lessee under the instrument creating the term.

7 Saving of certain legal estates and statutory powers.E+W

(1)A fee simple which, by virtue of the Lands Clauses Acts, . . . F13 or any similar statute, is liable to be divested, is for the purposes of this Act a fee simple absolute, and remains liable to be divested as if this Act had not been passed [F14and a fee simple subject to a legal or equitable right of entry or re-entry is for the purposes of this Act a fee simple absolute.]

(2)A fee simple vested in a corporation which is liable to determine by reason of the dissolution of the corporation is, for the purposes of this Act, a fee simple absolute.

(3)The provisions of—

(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F15

(b)the Friendly Societies Act, 1896, in regard to land to which that Act applies;

(c)any other statutes conferring special facilities or prescribing special modes (whether by way of registered memorial or otherwise) for disposing of or acquiring land, or providing for the vesting (by conveyance or otherwise) of the land in trustees or any person, or the holder for the time being of an office or any corporation sole or aggregate (including the Crown);

shall remain in full force.

F16. . ..

(4)Where any such power for disposing of or creating a legal estate is exercisable by a person who is not the estate owner, the power shall, when practicable, be exercised in the name and on behalf of the estate owner.

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Amendments (Textual)

F16In s. 7(3), the second paragraph repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch.4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

Modifications etc. (not altering text)

8 Saving of certain legal powers to lease.E+W

(1)All leases or tenancies at a rent for a term of years absolute authorised to be granted by a mortgagor or mortgagee or by the M5Settled Land Act, 1925, or any other statute (whether or not extended by any instrument) may be granted in the name and on behalf of the estate owner by the person empowered to grant the same, whether being an estate owner or not, with the same effect and priority as if this Part of this Act had not been passed; but this section does not (except as respects the usual qualified covenant for quiet enjoyment) authorise any person granting a lease in the name of an estate owner to impose any personal liability on him.

(2)Where a rentcharge is held for a legal estate, the owner thereof may under the statutory power or under any corresponding power, create a legal term of years absolute for securing or compelling payment of the same; but in other cases terms created under any such power shall, unless and until the estate owner of the land charged gives legal effect to the transaction, take effect only as equitable interests.

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Marginal Citations

9 Vesting orders and dispositions of legal estates operating as conveyances by an estate owner.E+W

(1)Every such order, declaration, or conveyance as is hereinafter mentioned, namely—

(a)every vesting order made by any court or other competent authority;

(b)every vesting declaration (express or implied) under any statutory power;

(c)every vesting instrument made by the trustees of a settlement or other persons under the provisions of the M6Settled Land Act, 1925;

(d)every conveyance by a person appointed for the purpose under an order of the court or authorised under any statutory power to convey in the name or on behalf of an estate owner;

(e)every conveyance made under any power reserved or conferred by this Act,

which is made or executed for the purpose of vesting, conveying, or creating a legal estate, shall operate to convey or create the legal estate disposed of in like manner as if the same had been a conveyance executed by the estate owner of the legal estate to which the order, declaration, vesting instrument, or conveyance relates.

(2)Where the order, declaration, or conveyance is made in favour of a purchaser, the provisions of this Act relating to a conveyance of a legal estate to a purchaser shall apply thereto.

(3)The provisions of the M7Trustee Act, 1925, relating to vesting orders and orders appointing a person to convey shall apply to all vesting orders authorised to be made by this Part of this Act.

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Modifications etc. (not altering text)

C16S. 9 extended (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130) ss. 155(6), 225(2), (with ss. 16(6), 179, 222(3), Sch. 22 para. 1, Sch. 23 para. 6)

Marginal Citations

10 Title to be shown to legal estates.E+W

(1)Where title is shown to a legal estate in land, it shall be deemed not necessary or proper to include in the abstract of title an instrument relating only to interests or powers which will be over-reached by the conveyance of the estate to which title is being shown; but nothing in this Part of this Act affects the liability of any person to disclose an equitable interest or power which will not be so over-reached, or to furnish an abstract of any instrument creating or affecting the same.

(2)A solicitor delivering an abstract framed in accordance with this Part of this Act shall not incur any liability on account of an omission to include therein an instrument which, under this section, is to be deemed not necessary or proper to be included, nor shall any liability be implied by reason of the inclusion of any such instrument.

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Modifications etc. (not altering text)

C19S. 10(2) extended (prosp.) by Building Societies Act 1986 (c. 53, SIF 16), ss. 54(3)(a)(5), 119(5), 124, 126, Sch. 21 paras. 9(a), 12(2)(3) (the said s. 124 (which induces Sch. 21) being repealed (prosp.) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 125(7), Sch. 20

11 Registration in Middlesex and Yorkshire as respects legal estates. E+W

(1)It shall not be necessary to register a memorial of any instrument made after the commencement of this Act in any local deeds registry unless the instrument operates to transfer or create a legal estate, or to create a charge thereon by way of legal mortgage; nor shall the registration of a memorial of any instrument not required to be registered affect any priority.

(2)Probates and letters of administration shall be treated as instruments capable of transferring a legal estate to personal representatives.

(3)Memorials of all instruments capable of transferring or creating a legal estate or charge by way of legal mortgage, may, when so operating, be registered.

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Modifications etc. (not altering text)

C20S. 11 repealed (prosp.) by Law of Property Act 1969 (c. 59), s. 16(2), Sch. 2 Pt. I which repeal is no longer prospective as regards the Yorkshire deeds registries, their registers and areas

12 Limitation and Prescription Acts.E+W

Nothing in this Part of this Act affects the operation of any statute, or of the general law for the limitation of actions or proceedings relating to land or with reference to the acquisition of easements or rights over or in respect of land.

13 Effect of possession of documents.E+W

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.

14 Interests of persons in possession.E+W

This Part of 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.

15 Presumption that parties are of full age.E+W

The persons expressed to be parties to any conveyance shall, until the contrary is proved, be presumed to be of full age at the date thereof.

Death DutiesE+W

16–18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F17E+W

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Amendments (Textual)

Infants and LunaticsE+W

F1819. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F18S. 19 repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch.4 ( with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

20 Infants not to be appointed trustees.E+W

The appointment of an infant to be a trustee in relation to any settlement or trust shall be void, but without prejudice to the power to appoint a new trustee to fill the vacancy.

21 Receipts by married infants.E+W

A married infant shall have power to give valid receipts for all income (including statutory accumulations of income made during the minority) to which the infant may be entitled in like manner as if the infant were of full age.

[F1922 Conveyances on behalf of persons suffering from mental disorder and as to land held by them [F20in trust].E+W

(1)Where a legal estate in land (whether settled or not) is vested [F21, either solely or jointly with any other person or persons, in a person lacking capacity (within the meaning of the Mental Capacity Act 2005) to convey or create a legal estate, a deputy appointed for him by the Court of Protection or (if no deputy is appointed]F21 for him) any person authorised in that behalf shall, under an order of [F22the Court of Protection]F22 , or of the court, or under any statutory power, make or concur in making all requisite dispositions for conveying or creating a legal estate in his name and on his behalf.

(2)If land [F20subject to a trust of land] is vested, either solely or jointly with any other person or persons, in a person who [F23lacks capacity (within the meaning of that Act) to exercise]F23 his functions as trustee, a new trustee shall be appointed in the place of that person, or he shall be otherwise discharged from the trust, before the legal estate is dealt with [F20by the trustees].]

[F24(3)Subsection (2) of this section does not prevent a legal estate being dealt with without the appointment of a new trustee, or the discharge of the incapable trustee, at a time when the donee of [F25an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act) is entitled to act for the trustee who lacks capacity inrelation to the dealing.F25]]

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Amendments (Textual)

F20Words in s. 22(2) and sidenote substituted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 4(6) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F26. . .E+W

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Amendments (Textual)

F26S. 23 (and the heading immediately preceding it) repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

F2723. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F27S. 23 (and the heading immediately preceding it) repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch.4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

[F28 Trusts of land]E+W

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Amendments (Textual)

F28S. 24 (and the heading immediately preceding it) substituted (1.1.1997) for s. 24 by 1996 c. 47, s. 25(1), Sch. 3 para. 4(7) (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

[F2924 Appointment of trustees of land.E+W

(1)The persons having power to appoint new trustees of land shall be bound to appoint the same persons (if any) who are for the time being trustees of any trust of the proceeds of sale of the land.

(2)A purchaser shall not be concerned to see that subsection (1) of this section has been complied with.

(3)This section applies whether the trust of land and the trust of proceeds of sale are created, or arise, before or after the commencement of this Act.]

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Amendments (Textual)

F29S. 24 (and the heading immediately preceding it) substituted (1.1.1997) for s. 24 by 1996 c. 47, s. 25(1), Sch. 3 para. 4(7) (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

F3025. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F3126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

27 Purchaser not to be concerned with the trusts of the proceeds of sale which are to be paid to two or more trustees or to a trust corporation.E+W

[F32(1)A purchaser of a legal estate from trustees of land shall not be concerned with the trusts affecting the land, the net income of the land or the proceeds of sale of the land whether or not those trusts are declared by the same instrument as that by which the trust of land is created.]

[F33(2)Notwithstanding anything to the contrary in the instrument (if any) creating a [F34trust] of land or in [F34any trust affecting the net proceeds of sale of the land if it is sold], the proceeds of sale or other capital money shall not be paid to or applied by the direction of fewer than two persons as [F34trustees], except where the trustee is a trust corporation, but this subsection does not affect the right of a sole personal representative as such to give valid receipts for, or direct the application of, proceeds of sale or other capital money, nor, except where capital money arises on the transaction, render it necessary to have more than one trustee.]

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Amendments (Textual)

F3528. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F3629. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F3730. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

31 [F38Trust] of mortgaged property where right of redemption is barred.E+W

(1)Where any property, vested in trustees by way of security, becomes, by virtue of the statutes of limitation, or of an order for foreclosure or otherwise, discharged from the right of redemption, it shall be held by them [F39in trust—

(a)to apply the income from the property in the same manner as interest paid on the mortgage debt would have been applicable; and

(b)if the property is sold, to apply the net proceeds of sale, after payment of costs and expenses, in the same manner as repayment of the mortgage debt would have been applicable.]

[F40(2) Subsection (1) of this section] operates without prejudice to any rule of law relating to the apportionment of capital and income between tenant for life and remainderman.

F41(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F42(4)Where—

(a)the mortgage money is capital money for the purposes of the Settled Land Act 1925;

(b)land other than any forming the whole or part of the property mentioned in subsection (1) of this section is, or is deemed to be, subject to the settlement; and

(c)the tenant for life or statutory owner requires the trustees to execute with respect to land forming the whole or part of that property a vesting deed such as would have been required in relation to the land if it had been acquired on a purchase with capital money,

the trustees shall execute such a vesting deed.]

(5)This section applies whether the right of redemption was discharged before or after the first day of January, nineteen hundred and twelve, but has effect without prejudice to any dealings or arrangements made before that date.

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Amendments (Textual)

F38Word in s. 31 sidenote substituted (1.1.1997) by 1996 c.47, s. 5(1), Sch. 2 para. 1(6)(7) (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

F39S. 31(1)(a)(b) and preceding words substituted (1.1.1997) by 1996 c. 47, s. 5(1), Sch. 2 para. 1(2)(7) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F40Words in s. 31(2) substituted (1.1.1997) by 1996 c. 47, s. 5(1), Sch. 2 para. (1)(3)(7) (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

F4332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

33 Application of Pt. I. to personal representatives.E+W

The provisions of this Part of this Act relating to [F44trustees of land] apply to personal representatives holding [F44land in trust], but without prejudice to their rights and powers for purposes of administration.

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Amendments (Textual)

Undivided Shares and Joint OwnershipE+W

34 Effect of future dispositions to tenants in common. E+W

(1)An undivided share in land shall not be capable of being created except as provided by the M8Settled Land Act, 1925, or as hereinafter mentioned.

(2)Where, after the commencement of this Act, land is expressed to be conveyed to any persons in undivided shares and those persons are of full age, the conveyance shall (notwithstanding anything to the contrary in this Act) operate as if the land had been expressed to be conveyed to the grantees, or, if there are more than four grantees, to the four first named in the conveyance, as joint tenants [F45in trust for the persons interested in the land]:

Provided that, where the conveyance is made by way of mortgage the land shall vest in the grantees or such four of them as aforesaid for a term of years absolute (as provided by this Act) as joint tenants subject to cesser on redemption in like manner as if the mortgage money had belonged to them on a joint account, but without prejudice to the beneficial interests in the mortgage money and interest.

(3)A devise bequest or testamentary appointment, coming into operation after the commencement of this Act, of land to two or more persons in undivided shares shall operate as a devise bequest or appointment of the land to F46. . . the personal representatives of the testator, and F46. . .(but without prejudice to the rights and powers of the personal representatives for purposes of administration) [F47in trust for the persons interested in the land].

[F48(3A)In subsections (2) and (3) of this section references to the persons interested in the land include persons interested as trustees or personal representatives (as well as persons beneficially interested).]

F49(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

F5035. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

36 Joint tenancies. E+W

(1)Where a legal estate (not being settled land) is beneficially limited to or held in trust for any persons as joint tenants, the same shall be held [F51in trust], in like manner as if the persons beneficially entitled were tenants in common, but not so as to sever their joint tenancy in equity.

(2)No severance of a joint tenancy of a legal estate, so as to create a tenancy in common in land, shall be permissible, whether by operation of law or otherwise, but this subsection does not affect the right of a joint tenant to release his interest to the other joint tenants, or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants:

Provided that, where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon [F52the land shall be held in trust on terms] which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.

[F53Nothing in this Act affects the right of a survivor of joint tenants, who is solely and beneficially interested, to deal with his legal estate as if it were not held [F52in trust].]

(3)Without prejudice to the right of a joint tenant to release his interest to the other joint tenants no severance of a mortgage term or trust estate, so as to create a tenancy in common, shall be permissible.

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Amendments (Textual)

F51Words in s. 36(1) substituted (1.1.1997) by 1996 c. 47, s. 5(1), Sch. 2 para. 4(2)(4) (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

Modifications etc. (not altering text)

37 Rights of husband and wife.E+W

A husband and wife shall, for all purposes of acquisition of any interest in property, under a disposition made or coming into operation after the commencement of this Act, be treated as two persons.

38 Party structures.E+W

(1)Where under a disposition or other arrangement which, if a holding in undivided shares had been permissible, would have created a tenancy in common, a wall or other structure is or is expressed to be made a party wall or structure, that structure shall be and remain severed vertically as between the respective owners, and the owner of each part shall have such rights to support and user over the rest of the structure as may be requisite for conferring rights corresponding to those which would have subsisted if a valid tenancy in common had been created.

(2)Any person interested may, in case of dispute, apply to the court for an order declaring the rights and interests under this section of the persons interested in any such party structure, and the court may make such order as it thinks fit.

Transitional ProvisionsE+W

39 Transitional provisions in First Schedule.E+W

For the purpose of effecting the transition from the law existing prior to the commencement of the M9Law of Property Act, 1922, to the law enacted by that Act (as amended), the provisions set out in the First Schedule to this Act shall have effect—

(1)for converting existing legal estates, interests and charges not capable under the said Act of taking effect as legal interests into equitable interests;

(2)for discharging, getting in or vesting outstanding legal estates;

(3)for making provision with respect to legal estates vested in infants;

(4)for subjecting land held in undivided shares to [F54trusts];

(5)for dealing with party structures and open spaces held in common;

(6)F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)for converting existing freehold mortgages into mortgages by demise;

(8)for converting existing leasehold mortgages into mortgages by sub-demise.

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Amendments (Textual)

Marginal Citations

Part II E+W Contracts, Conveyances and other Instruments

ContractsE+W

40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F56E+W

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Amendments (Textual)

41 Stipulations not of the essence of a contract.E+W

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, are also construed and have effect at law in accordance with the same rules.

42 Provisions as to contracts.E+W

(1)A stipulation that a purchaser of a legal estate in land shall accept a title made with the concurrence of any person entitled to an equitable interest shall be void, if a title can be made discharged from the equitable interest without such concurrence—

(a)under a [F57trust of land]; or

(b)under this Act, or the M10Settled Land Act, 1925, or any other statute.

(2)A stipulation that a purchaser of a legal estate in land shall pay or contribute towards the costs of or incidental to—

(a)obtaining a vesting order, or the appointment of trustees of a settlement, or the appointment of trustees of [F58land]; or

(b)the preparation stamping or execution of a conveyance [F58in trust], or of a vesting instrument for bringing into force the provisions of the Settled Land Act, 1925;

shall be void.

(3)A stipulation contained in any contract for the sale or exchange of land made after the commencement of this Act, to the effect that an outstanding legal estate is to be traced or got in by or at the expense of a purchaser or that no objection is to be taken on account of an outstanding legal estate, shall be void.

(4)If the subject matter of any contract for the sale or exchange of land—

(i)is a mortgage term and the vendor has power to convey the fee simple in the land, or, in the case of a mortgage of a term of years absolute, the leasehold reversion affected by the mortgage, the contract shall be deemed to extend to the fee simple in the land or such leasehold reversion;

(ii)is an equitable interest capable of subsisting as a legal estate, and the vendor has power to vest such legal estate in himself or in the purchaser or to require the same to be so vested, the contract shall be deemed to extend to such legal estate;

(iii)is an entailed interest in possession and the vendor has power to vest in himself or in the purchaser the fee simple in the land, (or, if the entailed interest is an interest in a term of years absolute, such term,) or to require the same to be so vested, the contract shall be deemed to extend to the fee simple in the land or the term of years absolute.

(5)This section does not affect the right of a mortgagee of leasehold land to sell his mortgage term only if he is unable to convey or vest the leasehold reversion expectant thereon.

F59(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Where a purchaser has power to acquire land compulsorily, and a contract, whether by virtue of a notice to treat or otherwise, is subsisting under which title can be made without payment of the compensation money into court, title shall be made in that way unless the purchaser, to avoid expense or delay or for any special reason, considers it expedient that the money should be paid into court.

(8)A vendor shall not have any power to rescind a contract by reason only of the enforcement of any right under this section.

(9)This section only applies in favour of a purchaser for money or money’s worth.

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

43 Rights protected by registration.E+W

(1)Where a purchaser of a legal estate is entitled to acquire the same discharged from an equitable interest which is protected by registration as a pending action, annuity, writ, order, deed of arrangement or land charge, and which will not be over-reached by the conveyance to him, he may notwithstanding any stipulation to the contrary, require—

(a)that the registration shall be cancelled; or

(b)that the person entitled to the equitable interest shall concur in the conveyance;

and in either case free of expense to the purchaser.

(2)Where the registration cannot be cancelled or the person entitled to the equitable interest refuses to concur in the conveyance, this section does not affect the right of any person to rescind the contract.

44 Statutory commencements of title.E+W

(1)After the commencement of this Act thirty years shall be substituted for forty years as the period of commencement of title which a purchaser of land may require; nevertheless earlier title than thirty years may be required in cases similar to those in which earlier title than forty years might immediately before the commencement of this Act be required.

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

(3)Under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion.

(4)On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to that reversion.

[F60(4A)Subsections (2) and (4) of this section do not apply to a contract to grant a term of years if the grant will be an event within section 4(1) of the Land Registration Act 2002 (events which trigger compulsory first registration of title).]

F60(5)Where by reason of any of [F61subsections (2) to (4) of this section]F61 , an intending lessee or assign is not entitled to call for the title to the freehold or to a leasehold reversion, as the case may be, he shall not, where the contract is made after the commencement of this Act, be deemed to be affected with notice of any matter or thing of which, if he had contracted that such title should be furnished, he might have had notice.

(6)Where land of copyhold or customary tenure has been converted into freehold by enfranchisement, then, under a contract to sell and convey the freehold, the purchaser shall not have the right to call for the title to make the enfranchisement.

(7)Where the manorial incidents formerly affecting any land have been extinguished, then, under a contract to sell and convey the freehold, the purchaser shall not have the right to call for the title of the person entering into any compensation agreement or giving a receipt for the compensation money to enter into such agreement or to give such receipt, and shall not be deemed to be affected with notice of any matter or thing of which, if he had contracted that such title should be furnished, he might have had notice.

(8)A purchaser shall not be deemed to be or ever to have been affected with notice of any matter or thing of which, if he had investigated the title or made enquiries in regard to matters prior to the period of commencement of title fixed by this Act, or by any other statute, or by any rule of law, he might have had notice, unless he actually makes such investigation or enquiries.

(9)Where a lease whether made before or after the commencement of this Act, is made under a power contained in a settlement, will, Act of Parliament, or other instrument, any preliminary contract for or relating to the lease shall not, for the purpose of the deduction of title to an intended assign, form part of the title, or evidence of the title, to the lease.

(10)This section, save where otherwise expressly provided, applies to contracts for sale whether made before or after the commencement of this Act, and applies to contracts for exchange in like manner as to contracts for sale, save that it applies only to contracts for exchange made after such commencement.

(11)This section applies only if and so far as a contrary intention is not expressed in the contract.

[F62(12)Nothing in this section applies in relation to registered land or to a term of years to be derived out of registered land.F62]

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Amendments (Textual)

F61By Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(3) (with s. 129); S.I. 2003/1725, art. 2, it is provided that in s. 44(5) for the words "the last three preceding subsections" there is substituted (13.10.2003) "subsections (2) to (4) of this section"

Modifications etc. (not altering text)

45 Other statutory conditions of sale.E+W

(1)A purchaser of any property shall not—

(a)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 the commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; or

(b)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, agreed 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 fine, recovery, acknowledgment, inrolment, or otherwise:

Provided that this subsection shall not deprive a purchaser of the right to require the production, or an abstract or copy of—

(i)any power of attorney under which any abstracted document is executed; or

(ii)any document creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the property is disposed of by an abstracted document; or

(iii)any document creating any limitation or trust by reference to which any part of the property is disposed of by an abstracted document.

(2)Where land sold is held by lease (other than an 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.

(3)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.

(4)On a sale of any property, the following expenses shall be borne by the purchaser where he requires them to be incurred for the purpose of verifying the abstract or any other purpose, that is to say—

(a)the expenses of the production and inspection of all Acts of Parliament, inclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of administration, and other documents, not in the possession of the vendor or his mortgagee or trustee, and the expenses of all journeys incidental to such production or inspection; and

(b)the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the possession of the vendor or his mortgagee or trustee, and all attested, stamped, office, or other copies or abstracts of, or extracts from, any Acts of Parliament or other documents aforesaid, not in the possession of the vendor or his mortgagee or trustee;

and where the vendor or his mortgagee or trustee 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.

(5)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.

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

(7)The inability of a vendor to furnish a purchaser with an acknowledgment of his right to production and delivery of copies of documents of title or with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.

(8)Such acknowledgments of the right of production or covenants for production and such undertakings or covenants for safe custody of documents as the purchaser can and does require shall be furnished or made at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself, and on behalf of and by necessary parties other than the purchaser.

(9)A vendor shall be entitled to retain documents of title where—

(a)he retains any part of the land to which the documents relate; or

(b)the document consists of a trust instrument or other instrument creating a trust which is still subsisting, or an instrument relating to the appointment or discharge of a trustee of a subsisting trust.

(10)This section applies to contracts for sale made before or after the commencement of this Act, and applies to contracts for exchange in like manner as to contracts for sale, except that it applies only to contracts for exchange made after such commencement:

Provided that this section shall apply subject to any stipulation or contrary intention expressed in the contract.

(11)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.

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Modifications etc. (not altering text)

46 Forms of contracts and conditions of sale. E+W

The Lord Chancellor may from time to time prescribe and publish forms of contracts and conditions of sale of land, and the forms so prescribed shall, subject to any modification, or any stipulation or intention to the contrary, expressed in the correspondence, apply to contracts by correspondence, and may, but only by express reference thereto, be made to apply to any other cases for which the forms are made available.

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Modifications etc. (not altering text)

47 Application of insurance money on completion of a sale or exchange.E+W

(1)Where after the date of any contract for sale or exchange of property, money becomes payable under any policy of insurance maintained by the vendor in respect of any damage to or destruction of property included in the contract, the money shall, on completion of the contract, be held or receivable by the vendor on behalf of the purchaser and paid by the vendor to the purchaser on completion of the sale or exchange, or so soon thereafter as the same shall be received by the vendor.

(2)This section applies only to contracts made after the commencement of this Act, and has effect subject to—

(a)any stipulation to the contrary contained in the contract,

(b)any requisite consents of the insurers,

(c)the payment by the purchaser of the proportionate part of the premium from the date of the contract.

(3)This section applies to a sale or exchange by an order of the court, as if—

(a)for references to the “vendor” there were substituted references to the “person bound by the order”;

(b)for the reference to the completion of the contract there were substituted a reference to the payment of the purchase or equality money (if any) into court;

(c)for the reference to the date of the contract there were substituted a reference to the time when the contract becomes binding.

48 Stipulations preventing a purchaser, lessee, or underlessee from employing his own solicitor to be void. E+W

(1)Any stipulation made on the sale of any interest in land after the commencement of this Act to the effect that the conveyance to, or the registration of the title of, the purchaser shall be prepared or carried out at the expense of the purchaser by a solicitor appointed by or acting for the vendor, and any stipulation which might restrict a purchaser in the selection of a solicitor to act on his behalf in relation to any interest in land agreed to be purchased, shall be void; and, if a sale is effected by demise or subdemise, then, for the purposes of this subsection, the instrument required for giving effect to the transaction shall be deemed to be a conveyance:

Provided that nothing in this subsection shall affect any right reserved to a vendor to furnish a form of conveyance to a purchaser from which the draft can be prepared, or to charge a reasonable fee therefor, or, where a perpetual rentcharge is to be reserved as the only consideration in money or money’s worth, the right of a vendor to stipulate that the draft conveyance is to be prepared by his solicitor at the expense of the purchaser.

(2)Any covenant or stipulation contained in, or entered into with reference to any lease or underlease made before or after the commencement of this Act—

(a)whereby the right of preparing, at the expense of a purchaser, any conveyance of the estate or interest of the lessee or underlessee in the demised premises or in any part thereof, or of otherwise carrying out, at the expense of the purchaser, any dealing with such estate or interest, is expressed to be reserved to or vested in the lessor or underlessor or his solicitor; or

(b)which in any way restricts the right of the purchaser to have such conveyance carried out on his behalf by a solicitor appointed by him;

shall be void:

Provided that, where any covenant or stipulation is rendered void by this subsection, there shall be implied in lieu thereof a covenant or stipulation that the lessee or underlessee shall register with the lessor or his solicitor within six months from the date thereof, or as soon after the expiration of that period as may be practicable, all conveyances and devolutions (including probates or letters of administration) affecting the lease or underlease and pay a fee of one guinea in respect of each registration, and the power of entry (if any) on breach of any covenant contained in the lease or underlease shall apply and extend to the breach of any covenant so to be implied.

(3)Save where a sale is effected by demise or sub-demise, this section does not affect the law relating to the preparation of a lease or underlease or the draft thereof.

(4)In this section “lease” and “underlease” include any agreement therefor or other tenancy, and “lessee” and “underlessee” and “lessor” and “underlessor” have corresponding meanings.

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Modifications etc. (not altering text)

C30S. 48 extended (prosp.) by Building Societies Act 1986 (c. 53, SIF 16), ss. 54(3)(a)(5), 119(5), 124, 126, Sch. 21 paras. 9(a), 12(2)(3) (the said s. 124 (which induces Sch. 21) being repealed (prosp.) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 125(7), Sch. 20

49 Applications to the court by vendor and purchaser.E+W

(1)A vendor or purchaser of any interest in land, or their representatives respectively, may apply in a summary way to the court, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the court may make such order upon the application as to the court may appear just, and may order how and by whom all or any of the costs of and incident to the application are to be borne and paid.

(2)Where the court refuses to grant specific performance of a contract, or in any action for the return of a deposit, the court may, if it thinks fit, order the repayment of any deposit.

(3)This section applies to a contract for the sale or exchange of any interest in land.

[F63(4)The county court has jurisdiction under this section where the land which is to be dealt with in the court does not exceed [F64£30,000] in capital value. F65 . . .]

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Amendments (Textual)

F64Words in s. 49(4) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)

F65Words in s. 49(4) omitted (1.7.1991) by virtue of S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)

Modifications etc. (not altering text)

C31S. 49 extended (1.7.1991) by S.I. 1991/724, art. 2(3)(a) (with art. 12)

50 Discharge of incumbrances by the court on sales or exchanges.E+W

(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 would otherwise 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, and generally may give directions respecting the application or distribution of the capital or income thereof.

(6)This section applies to sales or exchanges whether made before or after the commencement of this Act, and to incumbrances whether created by statute or otherwise.

Conveyances and other InstrumentsE+W

51 Lands lie in grant only.E+W

(1)All lands and all interests therein lie in grant and are incapable of being conveyed by livery or livery and seisin, or by feoffment, or by bargain and sale; and a conveyance of an interest in land may operate to pass the possession or right to possession thereof, without actual entry, but subject to all prior rights thereto.

(2)The use of the word grant is not necessary to convey land or to create any interest therein.

52 Conveyances to be by deed.E+W

(1)All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.

(2)This section does not apply to—

(a)assents by a personal representative;

(b)disclaimers made in accordance with [F66sections 178 to 180 or sections 315 to 319 of the Insolvency Act 1986], 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 [F67other than those falling within section 115 below];

(f)vesting orders of the court or other competent authority;

(g)conveyances taking effect by operation of law.

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Amendments (Textual)

53 Instruments required to be in writing.E+W

(1)Subject to the provision 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 does not affect the creation or operation of resulting, implied or constructive trusts.

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Modifications etc. (not altering text)

C35S. 53(1)(c) excluded (6.3.2009) by The Unit Trusts (Electronic Communications) Order (S.I. 2009/555), {art. 3}

54 Creation of interests in land by parol.E+W

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

(2)Nothing in the foregoing provisions of this Part 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.

55 Savings in regard to last two sections.E+W

Nothing in the last two foregoing 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.

56 Persons taking who are not parties and as to indentures.E+W

(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 may not be named as a party to the conveyance or other instrument.

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

57 Description of deeds.E+W

Any deed, whether or not being an indenture, may be described (at the commencement thereof or otherwise) as a deed simply, or as a conveyance, deed of exchange, vesting deed, trust instrument, settlement, mortgage, charge, transfer of mortgage, appointment, lease or otherwise according to the nature of the transaction intended to be effected.

58 Provisions as to supplemental instruments.E+W

Any instrument (whether executed before or after the commencement of this Act) expressed to be supplemental to a previous instrument, shall, as far as may be, be read and have effect as if the supplemental instrument contained a full recital of the previous instrument, but this section does not operate to give any right to an abstract or production of any such previous instrument, and a purchaser may accept the same evidence that the previous instrument does not affect the title as if it had merely been mentioned in the supplemental instrument.

59 Conditions and certain covenants not implied.E+W

(1)An exchange or other conveyance of land made by deed after the first day of October, eighteen hundred and forty-five, does not imply any condition in law.

(2)The word “give” or “grant” does not, in a deed made after the date last aforesaid, imply any covenant in law, save where otherwise provided by statute.

60 Abolition of technicalities in regard to conveyances and deeds.E+W

(1)A conveyance of freehold land to any person without words of limitation, or any equivalent expression, shall pass to the grantee the fee simple or other the whole interest which the grantor had power to convey in such land, unless a contrary intention appears in the conveyance.

(2)A conveyance of freehold land to a corporation sole by his corporate designation without the word “successors” shall pass to the corporation the fee simple or other the whole interest which the grantor had power to convey in such land, unless a contrary intention appears in the conveyance.

(3)In a voluntary conveyance a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee.

(4)The foregoing provisions of this section apply only to conveyances and deeds executed after the commencement of this Act:

Provided that in a deed executed after the thirty-first day of December, eighteen hundred and eighty-one, it is sufficient—

(a)In the limitation of an estate in fee simple, to use the words “in fee simple,” without the word “heirs”;

F68(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F68(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F68S. 60(4): paras. (b) and (c) of the proviso repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

61 Construction of expressions used in deeds and other instruments.E+W

In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires—

(a)Month” means calendar month;

(b)Person” includes a corporation;

(c)The singular includes the plural and vice versa;

(d)The masculine includes the feminine and vice versa.

62 General words implied in conveyances. E+W

(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, water-courses, 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)A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quitrents, rentscharge, rents seck, rents of assize, fee farm rents, services, royalties jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and hereditaments whatsoever, to the manor appertaining or reputed to appertain, or, at the time of conveyance, demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof.

For the purposes of this subsection the right to compensation for manorial incidents on the extinguishment thereof shall be deemed to be a right appertaining to the manor.

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

(5)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 or manor 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.

(6)This section applies to conveyances made after the thirty-first day of December, eighteen hundred and eighty-one.

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Modifications etc. (not altering text)

63 All estate clause implied. E+W

(1)Every conveyance is effectual to pass all the estate, right, title, interest, claim, and demand which the conveying parties respectively have, in, to, or on the property conveyed, or expressed or intended so to be, or which they respectively have power to convey in, to, or on the same.

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

(3)This section applies to conveyances made after the thirty-first day of December, eighteen hundred and eighty-one.

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Modifications etc. (not altering text)

64 Production and safe custody of documents.E+W

(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 from time to time 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—

(i)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 person by him authorised in writing; and

(ii)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 the United Kingdom, 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

(iii)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 acknowledgement 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 or 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 to an acknowledgment or undertaking given, or a liability respecting documents incurred, after the thirty-first day of December, eighteen hundred and eighty-one.

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Modifications etc. (not altering text)

C39S. 64 applied by Leasehold Reform Act 1967 (c. 88), s. 10(6)

S. 64 applied (with modifications) (24.7.1996) by 1996 c. 55, s. 131(4), Sch. 5 para. 4(3)(b)

S. 64 applied (12.1.2000) by 1999 c. 29, s. 412(14)(b) (with Sch. 12 para. 9(1)); S.I. 1999/3434, art. 2

s. 64 applied (with modifications) (1.2.2001) by 2000 c. 38, s. 63, Sch. 6 para. 12(2)(b) (with ss. 105(2)(5), 106(4)); S.I. 2001/57, art. 3, Sch. 2 Pt. I (with transitional provisions in Sch. 2 Pt. II)

C41S. 64: power to apply conferred (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), ss. 10, 23(4), 223(2), Sch. 2 para. 3(5)(b)

S. 64: power to apply conferred (1.4.1994) by 1993 c. 43, ss. 59, 150(1)(c)(m), Sch. 7 para. 3(4)(b); S.I. 1994/571, art. 5

S. 64: power to apply conferred (28.7.1995 in part and 12.10.1995 otherwise) by 1995 c. 25, ss. 3(8), 22(9), Sch. 2 para. 5(2)(b) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 2; S.I. 1995/2649, art. 2

S. 64: power to apply conferred (31.1.2005 for certain purposes, otherwise prosp.) by Public Audit (Wales) Act 2004 (c. 23), s. 68(3), Sch. 3 para. 1(6)(b); S.I. 2005/71, art. 2(1), Sch.

65 Reservation of legal estates.E+W

(1)A reservation of a legal estate shall operate at law without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any regrant by him, so as to create the legal estate reserved, and so as to vest the same in possession in the person (whether being the grantor or not) for whose benefit the reservation is made.

(2)A conveyance of a legal estate expressed to be made subject to another legal estate not in existence immediately before the date of the conveyance, shall operate as a reservation, unless a contrary intention appears.

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

66 Confirmation of past transactions.E+W

(1)A deed containing a declaration by the estate owner that his estate shall go and devolve in such a manner as may be requisite for confirming any interests intended to affect his estate and capable under this Act of subsisting as legal estates which, at some prior date, were expressed to have been transferred or created, and any dealings therewith which would have been legal if those interests had been legally and validly transferred or created, shall, to the extent of the estate of the estate owner, but without prejudice to the restrictions imposed by this Act in the case of mortgages, operate to give legal effect to the interests so expressed to have been transferred or created and to the subsequent dealings aforesaid.

(2)The powers conferred by this section may be exercised by a tenant for life or statutory owner, [F69trustee of land] or a personal representative (being in each case an estate owner) as well as by an absolute owner, but if exercised by any person, other than an absolute owner, only with the leave of the court.

(3)This section applies only to deeds containing such a declaration as aforesaid if executed after the commencement of this Act.

[F70(4)The county court has jurisdiction under this section where the land which is to be dealt with in the court does not exceed [F71£30,000] in capital value F72 . . .]

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Amendments (Textual)

F69Words in s. 66(2) substituted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 4(12) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F71Words in s. 66(4) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt. I (with art. 12)

F72Words in s. 66(4) omitted (1.7.1991) by virtue of S.I. 1991/724, art. 2(8), Sch. Pt. I (with art. 12)

Modifications etc. (not altering text)

C42S. 66 extended (1.7.1991) by S.I. 1991/724, art. 2(3)(a) (with art. 12)

67 Receipt in deed sufficient.E+W

(1)A receipt for consideration money or securities in the body of a deed shall be a sufficient discharge for the same to the person paying or delivering the same, without any further receipt for the same being indorsed on the deed.

(2)This section applies to deeds executed after the thirty-first day of December, eighteen hundred and eighty-one.

68 Receipt in deed or indorsed evidence.E+W

(1)A receipt for consideration money or other consideration in the body of a deed or indorsed thereon shall, in favour of a subsequent purchaser, not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given, wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof.

(2)This section applies to deeds executed after the thirty-first day of December, eighteen hundred and eighty-one.

69 Receipt in deed or indorsed authority for payment to solicitor. E+W

(1)Where a solicitor produces a deed, having in the body thereof or indorsed thereon a receipt for consideration money or other consideration, the deed being executed, or the indorsed receipt being signed, by the person entitled to give a receipt for that consideration, the deed shall be a sufficient authority to the person liable to pay or give the same for his paying or giving the same to the solicitor, without the solicitor producing any separate or other direction or authority in that behalf from the person who executed or signed the deed or receipt.

(2)This section applies whether the consideration was paid or given before or after the commencement of this Act.

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Modifications etc. (not altering text)

70 Partial release of security from rentcharge.E+W

(1)A release from a rentcharge of part of the land charged therewith does not extinguish the whole rent charge, but operates 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.

(2)This section applies to releases made after the twelfth day of August, eighteen hundred and fifty-nine.

71 Release of part of land affected from a judgment.E+W

(1)A release from a judgment (including any writ or order imposing a charge) of part of any land charged therewith does not affect the validity of the judgment as respects any land not specifically released.

(2)This section operates without prejudice to the rights of any persons interested in the property remaining unreleased and not concurring in or confirming the release.

(3)This section applies to releases made after the twelfth day of August, eighteen hundred and fifty-nine.

72 Conveyances by a person to himself, &c.E+W

(1)In conveyances made after the twelfth day of August, eighteen hundred and fifty-nine, personal property, including chattels real, may be conveyed by a person to himself jointly with another person by the like means by which it might be conveyed by him to another person.

(2)In conveyances made after the thirty-first day of December, eighteen hundred and eighty-one, freehold land, or a thing in action, may be conveyed by a person to himself jointly with another person, by the like means by which it might be conveyed by him to another person; and may, in like manner, be conveyed by a husband to his wife, and by a wife to her husband, alone or jointly with another person.

(3)After the commencement of this Act a person may convey land to or vest land in himself.

(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.

73. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F73E+W

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Amendments (Textual)

74 Execution of instruments by or on behalf of corporations.E+W

[F74(1)In favour of a purchaser an instrument shall be deemed to have been duly executed by a corporation aggregate if a seal purporting to be the corporation's seal purportsto be affixed to the instrument in the presence of and attested by—

(a)two members of the board of directors, council or other governing body of the corporation, or

(b)one such member and the clerk, secretary or other permanent officer of the corporation or his deputy.]

[F75F74(1A)Subsection (1) of this section applies in the case of an instrument purporting to have been executed by a corporation aggregate in the name or on behalf of anotherperson whether or not that person is also a corporation aggregate.]

[F76F75(1B)For the purposes of subsection (1) of this section, a seal purports to be affixed in the presence of and attested by an officer of the corporation, in the case of an officer which is not an individual, if it is affixed in the presence of and attested by an individual authorised by the officer to attest on its behalf.]

F76(2)The board of directors, council or other governing body of a corporation aggregate may, by resolution or otherwise, appoint an agent either generally or in any particular case, to execute on behalf of the corporation any agreement or other instrument [F77which is not a deed] in relation to any matter within the powers of the corporation.

(3)Where a person is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of a corporation sole or aggregate, he may as attorney execute the conveyance by signing the name of the corporation in the presence of at least one witness [F78who attests the signature]F78, F79. . . and such execution shall take effect and be valid in like manner as if the corporation had executed the conveyance.

(4)Where a corporation aggregate is authorised under a power of attorney or under any statutory or other power to convey any interest in property in the name or on behalf of any other person (including another corporation), an officer appointed for that purpose by the board of directors, council or other governing body of the corporation by resolution or otherwise, may execute the [F80instrument by signing it]F80 in the name of such other person [F81or, if the instrument is to be a deed, by so signing it in the presence of a witness who attests the signature]F81; and where an instrument appears to be executed by an officer so appointed, then in favour of a purchaser the instrument shall be deemed to have been executed by an officer duly authorised.

(5)The foregoing provisions of this section apply to transactions wherever effected, but only to deeds and instruments executed after the commencement of this Act, except that, in the case of powers or appointments of an agent or officer, they apply whether the power was conferred or the appointment was made before or after the commencement of this Act or by this Act.

(6)Notwithstanding anything contained in this section, any mode of execution or attestation authorised by law or by practice or by the statute, charter, [F82articles]F82, deed of settlement or other instrument constituting the corporation or regulating the affairs thereof, shall (in addition to the modes authorised by this section) be as effectual as if this section had not been passed.

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Amendments (Textual)

F82Word in s. 74(6) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order (S.I. 2009/1941), art. 2(1), {Sch. 1 para. 4} (with art. 10)

Modifications etc. (not altering text)

[F8374AExecution of instrument as a deedE+W

(1)An instrument is validly executed by a corporation aggregate as a deed for the purposes of section 1(2)(b) of the Law of Property (MiscellaneousProvisions) Act 1989, if and only if—

(a)it is duly executed by the corporation, and

(b)it is delivered as a deed.

(2)An instrument shall be presumed to be delivered for the purposes of subsection (1)(b) of this section upon its being executed, unless a contraryintention is proved.]

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Amendments (Textual)

75 Rights of purchaser as to execution.E+W

(1)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 solicitor, 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 solicitor.

(2)This section applies to sales made after the thirty-first day of December, eighteen hundred and eighty-one.

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Modifications etc. (not altering text)

CovenantsE+W

F8476. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F84S. 76 repealed (1.7.1995) by 1994 c. 36, ss. 10, 11, 13, 21(2)(3), Sch.2 (with s. 20); S.I. 1995/1317, art. 2

77 Implied covenants in conveyances subject to rents. E+W

(1)In addition to the covenants implied under [F85Part I of the Law of Property (Miscellaneous Provisions) Act 1994], there shall in the several cases in this section mentioned, be deemed to be included and implied, a covenant to the effect in this section stated, by and with such persons as are hereinafter mentioned, that is to say:—

(a)In a conveyance for valuable consideration, other than a mortgage, of the entirety of the land affected by a rentcharge, a covenant by the grantee or joint and several covenants by the grantees, if more than one, with the conveying parties and with each of them, if more than one, in the terms set out in Part VII. of the Second Schedule to this Act. Where a rentcharge has been apportioned in respect of any land, with the consent of the owner of the rentcharge, the covenants in this paragraph shall be implied in the conveyance of that land in like manner as if the apportioned rentcharge were the rentcharge referred to, and the document creating the rentcharge related solely to that land:

(b)In a conveyance for valuable consideration, other than a mortgage, of part of land affected by a rentcharge, subject to a part of that rentcharge which has been or is by that conveyance apportioned (but in either case without the consent of the owner of the rentcharge) in respect of the land conveyed:—

(i)A covenant by the grantee of the land or joint and several covenants by the grantees, if more than one, with the conveying parties and with each of them, if more than one, in the terms set out in paragraph (i) of Part VIII. of the Second Schedule to this Act;

(ii)A covenant by a person who conveys or is expressed to convey as beneficial owner, or joint and several covenants by the persons who so convey or are expressed to so convey, if at the date of the conveyance any part of the land affected by such rentcharge is retained, with the grantees of the land and with each of them (if more than one) in the terms set out in paragraph (ii) of Part VIII. of the Second Schedule to this Act:

F86(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F86(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F87(2)Where in a conveyance for valuable consideration, other than a mortgage, part of land affected by a rentcharge is, without the consent of the owner of the rentcharge, expressed to be conveyed subject to or charged with the entire rent, paragraph (B)(i) of subsection (1) of this section shall apply as if, in paragraph (i) of Part VIII of the Second Schedule to this Act—

(a)any reference to the apportioned rent were to the entire rent; and

(b)the words “(other than the covenant to pay the entire rent)” were omitted.

F87(2A)Where in a conveyance for valuable consideration, other than a mortgage, part of land affected by a rentcharge is, without the consent of the owner of the rentcharge, expressed to be conveyed discharged or exonerated from the entire rent, paragraph (B)(ii) of subsection (1) of this section shall apply as if, in paragraph (ii) of Part VIII of the Second Schedule to this Act—

(a)any reference to the balance of the rent were to the entire rent; and

(b)the words “, other than the covenant to pay the entire rent,” were omitted.]

(3)In this section “conveyance” does not include a demise by way of lease at a rent.

(4)Any covenant which would be implied under this section by reason of a person conveying or being expressed to convey as beneficial owner may, by express reference to this section, be implied, with or without variation, in a conveyance, whether or not for valuable consideration, by a person who conveys or is expressed to convey as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, . . . F88 or under an order of the court.

(5)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.

(6)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.

(7)In particular any covenant implied under this section may be extended by providing that—

(a)the land conveyed; or

(b)the part of the land affected by the rentcharge which remains vested in the covenantor; F89. . .

F89(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

shall, as the case may require, stand charged with the payment of all money which may become payable under the implied covenant.

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

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Amendments (Textual)

F85Words in s. 77(1) substituted (1.7.1995) by 1994 c. 36, ss. 21(1), 22(2), Sch. 1 para. 1 (with s. 20); S.I. 1995/1317, art. 2

F86S. 77(1)(C)(D) repealed (1.1.1996) by 1995 c. 30, ss. 14(a), 30(2), Sch. 2, (with saving in s. 30(3)(a) and with ss. 1(1), 2(2), 26(1)(2)); S.I. 1995/2963, art. 2

F87S. 77(2)(2A) substituted (1.1.1996) for s. 77(2) by 1995 c. 30, s. 30(1), Sch. 1 para.2 (with savings in s. 30(3)(a) and with ss. 2(2), 26(1)(2)); S.I. 1995/2963, art. 2

F89S. 77(7)(c) and preceding word repealed (1.1.1996) by 1995 c. 30, s. 30(2), Sch.2 (with savings in s. 30(3)(a) and with ss. 2(2), 26(1)(2)); S.I. 1995/2963, art.2

Modifications etc. (not altering text)

C49S. 77 superseded for certain purposes as regards land affected by a rentcharge created after 22.7.1977 by Rentcharges Act 1977 (c. 30, SIF 98:1), s. 11

78 Benefit of covenants relating to land.E+W

(1)A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and shall have effect as if such successors and other persons were expressed.

For the purposes of this subsection in connexion with covenants restrictive of the user of land “successors in title” shall be deemed to include the owners and occupiers for the time being of the land of the covenantee intended to be benefited.

(2)This section applies to covenants made after the commencement of this Act, but the repeal of section fifty-eight of the M11Conveyancing Act, 1881, does not affect the operation of covenants to which that section applied.

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Modifications etc. (not altering text)

C50S. 78 excluded (1.1.1996) by 1995 c. 30, s. 30(4)(a) (with ss. 2(2), 26(1)(2)); S.I. 1995/2963, art.2

Marginal Citations

79 Burden of covenants relating to land. E+W

(1)A covenant relating to any land of a covenantor or capable of being bound by him, shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself his successors in title and the persons deriving title under him or them, and, subject as aforesaid, shall have effect as if such successors and other persons were expressed.

This subsection extends to a covenant to do some act relating to the land, notwithstanding that the subject-matter may not be in existence when the covenant is made.

(2)For the purposes of this section in connexion with covenants restrictive of the user of land “successors in title” shall be deemed to include the owners and occupiers for the time being of such land.

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

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Modifications etc. (not altering text)

C51S. 79 extended by Coal Act 1938 (c. 52), s. 19(3); applied with modifications by Countryside Act 1968 (c. 41), s. 15(4)

C52S. 79 excluded (1.1.1996) by 1995 c. 30, s. 30(4)(a) (with ss. 2(2), 26(1)(2)); S.I. 1995/2963, art.2

80 Covenants binding land.E+W

(1)A covenant and a bond and an obligation or contract [F90made under seal after 31st December 1881 but before the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 or executed as a deed in accordance with that section after its coming into force], binds the real estate as well as the personal estate of the person making the same if and so far as a contrary intention is not expressed in the covenant, bond, obligation, or contract.

This subsection extends to a covenant implied by virtue of this Act.

(2)Every covenant running with the land, whether entered into before or after the commencement of this Act, shall take effect in accordance with any statutory enactment affecting the devolution of the land, and accordingly the benefit or burden of every such covenant shall vest in or bind the persons who by virtue of any such enactment or otherwise succeed to the title of the covenantee or the covenantor, as the case may be.

(3)The benefit of a covenant relating to land entered into after the commencement of this Act may be made to run with the land without the use of any technical expression if the covenant is of such a nature that the benefit could have been made to run with the land before the commencement of this Act.

(4)For the purposes of this section, a covenant runs with the land when the benefit or burden of it, whether at law or in equity, passes to the successors in title of the covenantee or the covenantor, as the case may be.

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Amendments (Textual)

81 Effect of covenant with two or more jointly.E+W

(1)A covenant, and a contract under seal, and a bond or obligation under seal, made with two or more jointly, to pay money or to make a conveyance, or to do any other act, to them or for their benefit, shall be deemed to include, and shall, by virtue of this Act, imply, an obligation to do the act to, or for the benefit of, the survivor or survivors of them, and to, or for the benefit of, any other person to whom the right to sue on the covenant, contract, bond, or obligation devolves, and where made after the commencement of this Act shall be construed as being also made with each of them.

(2)This section extends to a covenant implied by virtue of this Act.

(3)This section applies only if and as far as a contrary intention is not expressed in the covenant, contract, bond, or obligation, and has effect subject to the covenant, contract, bond, or obligation, and to the provisions therein contained.

(4)Except as otherwise expressly provided, this section applies to a covenant, contract, bond, or obligation made or implied after the thirty-first day of December, eighteen hundred and eighty-one.

[F91(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.]

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Amendments (Textual)

Modifications etc. (not altering text)

C53S. 81 applied (1.7.1995) by 1994 c. 36, s. 8(2) (with s. 20); S.I. 1995/1317, art.2

82 Covenants and agreements entered into by a person with himself and another or others.E+W

(1)Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone.

(2)This section applies to covenants or agreements entered into before or after the commencement of this Act, and to covenants implied by statute in the case of a person who conveys or is expressed to convey to himself and one or more other persons, but without prejudice to any order of the court made before such commencement.

83 Construction of implied covenants.E+W

In the construction of a covenant or proviso, or other provision, implied in a deed or assent by virtue of this Act, words importing the singular or plural number, or the masculine gender, shall be read as also importing the plural or singular number, or as extending to females, as the case may require.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C54S. 83 applied (1.7.1995) by 1994 c. 36, s. 8(2) (with s. 20); S.I. 1995/1317, art.2

84 Power to discharge or modify restrictive covenants affecting land.E+W

(1)[F92The [F93Upper TribunalF93]] shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction F94. . . on being satisfied—

(a)that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which [F92the [F93Upper TribunalF93]] may deem material, the restriction ought to be deemed obsolete, or

[F95(aa)that [F96in a case falling within subsection (1A) below] the continued existence thereof would impede [F92some reasonable user] of the land for public or private purposes F97. . . or, as the case may be, would unless modified so impede such user; or]

(b)that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or

(c)that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction:

[F98and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either—

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

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

F94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F99(1A)Subsection (1) (aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the [F93Upper Tribunal]F93 is satisfied that the restriction, in impeding that user, either—

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

(b)is contrary to the public interest;

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

[F99(1B)In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the [F93Upper Tribunal]F93 shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.]

[F100(1C)It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the [F93Upper Tribunal]F93 to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant; and the [F93Upper Tribunal]F93 may accordingly refuse to modify a restriction without some such addition.]

(2)The court shall have power on the application of any person interested—

(a)To declare whether or not in any particular case any freehold land is [F101or would in any given event be] affected by a restriction imposed by any instrument; or

(b)To declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is [F101or would in any given event be] enforceable and if so by whom.

[F102Neither subsections (7) and (11) of this section nor, unless the contrary is expressed, any later enactment providing for this section not to apply to any restrictions shall affect the operation of this subsection or the operation for purposes of this subsection of any other provisions of this section.]

(3) The [F93Upper Tribunal]F93 shall, before making any order under this section, direct such enquiries, if any, to be made of any [F101government department or] local authority, and such notices, if any, whether by way of advertisement or otherwise, to be given to such of the persons who appear to be entitled to the benefit of the restriction intended to be discharged, modified, or dealt with as, having regard to any enquiries notices or other proceedings previously made, given or taken, [F103the [F93Upper TribunalF93]] may think fit.

[F104(3A)On an application to the [F105Upper Tribunal]F105 under this section the [F105Upper Tribunal]F105 shall give any necessary directions as to the persons who are or are not to be admitted (as appearing to be entitled to the benefit of the restriction) to oppose the application, and no appeal shall lie against any such direction; but [F106Tribunal Procedure Rules]F106 shall make provision whereby, in cases in which there arises on such an application (whether or not in connection with the admission of persons to oppose) any such question as is referred to in subsection (2) (a) or (b) of this section, the proceedings on the application can and, if the rules so provide, shall be suspended to enable the decision of the court to be obtained on that question by an application under that subsection, F107... or otherwise, as may be provided by those rules or by rules of court.]

F108(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Any order made under this section shall be binding on all persons, whether ascertained or of full age or capacity or not, then entitled or thereafter capable of becoming entitled to the benefit of any restriction, which is thereby discharged, modified, or dealt with, and whether such persons are parties to the proceedings or have been served with notice or not F109. . .

(6)An order may be made under this section notwithstanding that any instrument which is alleged to impose the restriction intended to be discharged, modified, or dealt with, may not have been produced to the court or the [F93Upper Tribunal]F93, and the court or [F103the [F93Upper TribunalF93]] may act on such evidence of that instrument as it may think sufficient.

(7)This section applies to restrictions whether subsisting at the commencement of this Act or imposed thereafter, but this section does not apply where the restriction was imposed on the occasion of a disposition made gratuitously or for a nominal consideration for public purposes.

(8)This section applies whether the land affected by the restrictions is registered or not F110...

(9)Where any proceedings by action or otherwise are taken to enforce a restrictive covenant, any person against whom the proceedings are taken, may in such proceedings apply to the court for an order giving leave to apply to the [F93Upper Tribunal]F93 under this section, and staying the proceedings in the meantime.

F108(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)This section does not apply to restrictions imposed by the Commissioners of Works under any statutory power for the protection of any Royal Park or Garden or to restrictions of a like character imposed upon the occasion of any enfranchisement effected before the commencement of this Act in any manor vested in His Majesty in right of the Crown or the Duchy of Lancaster, nor [F111subject to subsection (11A) below] to restrictions created or imposed—

(a)for Naval, Military or Air Force purposes,

[F112(b)for civil aviation purposes under the powers of the Air Navigation Act 1920, of section 19 or 23 of the Civil Aviation Act 1949 or of section 30 or 41 of the Civil Aviation Act 1982.]

[F113(11A)Subsection (11) of this section—

(a)shall exclude the application of this section to a restriction falling within subsection (11)(a), and not created or imposed in connection with the use of any land as an aerodrome, only so long as the restriction is enforceable by or on behalf of the Crown; and

(b)shall exclude the application of this section to a restriction falling within subsection (11)(b), or created or imposed in connection with the use of any land as an aerodrome, only so long as the restriction is enforceable by or on behalf of the Crown or any public or international authority.]

(12)Where a term of more than [F114forty] years is created in land (whether before or after the commencement of this Act) this section shall, after the expiration of [F114twenty-five] years of the term, apply to restrictions affecting such leasehold land in like manner as it would have applied had the land been freehold:

Provided that this subsection shall not apply to mining leases.

F108(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F92Words substituted by Law of Property Act 1969 (c. 59), s. 28(1)(a)(2)(b)

F93Words in s. 84 substituted (1.6.2009) by The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order (S.I. 2009/1307), art. 5(1)(2), {Sch. 1 para. 5(a)} (with Sch. 5)

F94Words and proviso repealed by Law of Property Act 1969 (c. 59), s. 28(3)

F95So much of s. 84(1)(a) as follows words “obsolete, or” amended and incorporated in para. (aa) by Law of Property Act 1969 (c. 59), s. 28(1)(a)

F105Words in s. 84(3A) substituted (1.6.2009) by The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order (S.I. 2009/1307), art. 5(1)(2), {Sch. 1 para. 5(b)(i)} (with Sch. 5)

F106Words in s. 84(3A) substituted (1.6.2009) by The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order (S.I. 2009/1307), art. 5(1)(2), {Sch. 1 para. 5(b)(ii)} (with Sch. 5)

F107Words in s. 84(3A) omitted (1.6.2009) by virtue of The Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order (S.I. 2009/1307), art. 5(1)(2), {Sch. 1 para. 5(b)(iii)} (with Sch. 5)

Modifications etc. (not altering text)

C57S. 84 (except s. 84(2)) excluded (1.3.1993) by Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No. 1, SIF 21:8), ss. 22(7), 23; Archbishops' Instrumentdated 16.2.1993

C60Functions of Commissioners of Works now exercisable by Secretary of State: S.R. & O. 1945/991 (Rev.XV, p. 232: 1945 I, p. 1414), S.I. 1962/1549 and 1970/1681

Part III E+W Mortgages, Rentcharges, and Powers of Attorney

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Modifications etc. (not altering text)

MortgagesE+W

85 Mode of mortgaging freeholds.E+W

(1)A mortgage of an estate in fee simple shall only be capable of being effected at law either by a demise for a term of years absolute, subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage:

Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple.

(2)Any purported conveyance of an estate in fee simple by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a demise of the land to the mortgagee for a term of years absolute, without impeachment for waste, but subject to cesser on redemption, in manner following, namely:—

(a)A first or only mortgagee shall take a term of three thousand years from the date of the mortgage:

(b)A second or subsequent mortgagee shall take a term (commencing from the date of the mortgage) one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of such second or subsequent mortgagee:

and, in this subsection, any such purported conveyance as aforesaid includes an absolute conveyance with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the fee simple in a mortgagee subject to redemption.

(3)[F115Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not]F115 the mortgage is expressed to be made by way of trust for sale or otherwise.

(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage or to lend money on mortgage of an estate in fee simple shall be construed as a power to mortgage the estate for a term of years absolute, without impeachment for waste, or by a charge by way of legal mortgage or to lend on such security.

[F116(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.]

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Amendments (Textual)

86 Mode of mortgaging leaseholds.E+W

(1)A mortgage of a term of years absolute shall only be capable of being effected at law either by a subdemise for a term of years absolute, less by one day at least than the term vested in the mortgagor, and subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage; and where a licence to subdemise by way of mortgage is required, such licence shall not be unreasonably refused:

Provided that a first mortgagee shall have the same right to the possession of documents as if his security had been effected by assignment.

(2)Any purported assignment of a term of years absolute by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a subdemise of the leasehold land to the mortgagee for a term of years absolute, but subject to cesser on redemption, in manner following, namely:—

(a)The term to be taken by a first or only mortgagee shall be ten days less than the term expressed to be assigned:

(b)The term to be taken by a second or subsequent mortgagee shall be one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of the second or subsequent mortgagee, if the length of the last mentioned term permits, and in any case for a term less by one day at least than the term expressed to be assigned:

and, in this subsection, any such purported assignment as aforesaid includes an absolute assignment with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the term of the mortgagor in a mortgagee subject to redemption.

(3)[F117Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not]F117 the mortgage is made by way of sub-mortgage of a term of years absolute, or is expressed to be by way of trust for sale or otherwise.

(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage for or to lend money on mortgage of a term of years absolute by way of assignment shall be construed as a power to mortgage the term by subdemise for a term of years absolute or by a charge by way of legal mortgage, or to lend on such security.

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Amendments (Textual)

87 Charges by way of legal mortgage.E+W

(1)Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits, or any of them) as if—

(a)where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee; and

(b)where the mortgage is a mortgage of a term of years absolute, a sub-term less by one day than the term vested in the mortgagor had been thereby created in favour of the mortgagee.

(2)Where an estate vested in a mortgagee immediately before the commencement of this Act has by virtue of this Act been converted into a term of years absolute or sub-term, the mortgagee may, by a declaration in writing to that effect signed by him, convert the mortgage into a charge by way of legal mortgage, and in that case the mortgage term shall be extinguished in the inheritance or in the head term as the case may be, and the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits or any of them) as if the mortgage term or sub-term had remained subsisting.

The power conferred by this subsection may be exercised by a mortgagee notwithstanding that he is a trustee or personal representative.

(3)Such declaration shall not affect the priority of the mortgagee or his right to retain possession of documents, nor affect his title to or right over any fixtures or chattels personal comprised in the mortgage.

[F118(4)Subsection (1) of this section shall not be taken to be affected by section 23(1)(a) of the Land Registration Act 2002 (under which owner’s powers in relation to a registered estate do not include power to mortgage by demise or sub-demise).F118]

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Amendments (Textual)

88 Realisation of freehold mortgages.E+W

(1)Where an estate in fee simple has been mortgaged by the creation of a term of years absolute limited thereout or by a charge by way of legal mortgage and the mortgagee sells under his statutory or express power of sale—

(a)the conveyance by him shall operate to vest in the purchaser the fee simple in the land conveyed subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon;

(b)the mortgage term or the charge by way of legal mortgage and any subsequent mortgage term or charges shall merge or be extinguished as respects the land conveyed;

and such conveyance may, as respects the fee simple, be made in the name of the estate owner in whom it is vested.

(2)Where any such mortgagee obtains an order for foreclosure absolute, the order shall operate to vest the fee simple in him (subject to any legal mortgage having priority to the mortgage in right of which the foreclosure is obtained and to any money thereby secured), and thereupon the mortgage term, if any, shall thereby be merged in the fee simple, and any subsequent mortgage term or charge by way of legal mortgage bound by the order shall thereupon be extinguished.

(3)Where any such mortgagee acquires a title under the Limitation Acts, he, or the persons deriving title under him, may enlarge the mortgage term into a fee simple under the statutory power for that purpose discharged from any legal mortgage affected by the title so acquired, or in the case of a chargee by way of legal mortgage may by deed declare that the fee simple is vested in him discharged as aforesaid, and the same shall vest accordingly.

(4)Where the mortgage includes fixtures or chattels personal any statutory power of sale and any right to foreclose or take possession shall extend to the absolute or other interest therein affected by the charge.

(5)In the case of a sub-mortgage by subdemise of a long term (less a nominal period) itself limited out of an estate in fee simple, the foregoing provisions of this section shall operate as if the derivative term, if any, created by the sub-mortgage had been limited out of the fee simple, and so as to enlarge the principal term and extinguish the derivative term created by the sub-mortgage as aforesaid, and to enable the sub-mortgagee to convey the fee simple or acquire it by foreclosure, enlargement, or otherwise as aforesaid.

(6)This section applies to a mortgage whether created before or after the commencement of this Act, and to a mortgage term created by this Act, but does not operate to confer a better title to the fee simple than would have been acquired if the same had been conveyed by the mortgage (being a valid mortgage) and the restrictions imposed by this Act in regard to the effect and creation of mortgages were not in force, and all prior mortgages (if any) not being merely equitable charges had been created by demise or by charge by way of legal mortgage.

89 Realisation of leasehold mortgages.E+W

(1)Where a term of years absolute has been mortgaged by the creation of another term of years absolute limited thereout or by a charge by way of legal mortgage and the mortgagee sells under his statutory or express power of sale,—

(a)the conveyance by him shall operate to convey to the purchaser not only the mortgage term, if any, but also (unless expressly excepted with the leave of the court) the leasehold reversion affected by the mortgage, subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon

(b)the mortgage term, or the charge by way of legal mortgage and any subsequent mortgage term or charge, shall merge in such leasehold reversion or be extinguished unless excepted as aforesaid;

and such conveyance may, as respects the leasehold reversion, be made in the name of the estate owner in whom it is vested.

Where a licence to assign is required on a sale by a mortgagee, such licence shall not be unreasonably refused.

(2)Where any such mortgagee obtains an order for foreclosure absolute, the order shall, unless it otherwise provides, operate (without giving rise to a forfeiture for want of a licence to assign) to vest the leasehold reversion affected by the mortgage and any subsequent mortgage term in him, subject to any legal mortgage having priority to the mortgage in right of which the foreclosure is obtained and to any money thereby secured, and thereupon the mortgage term and any subsequent mortgage term or charge by way of legal mortgage bound by the order shall, subject to any express provision to the contrary contained in the order, merge in such leasehold reversion or be extinguished.

(3)Where any such mortgagee acquires a title under the Limitation Acts, he, or the persons deriving title under him, may by deed declare that the leasehold reversion affected by the mortgage and any mortgage term affected by the title so acquired shall vest in him, free from any right of redemption which is barred, and the same shall (without giving rise to a forfeiture for want of a licence to assign) vest accordingly, and thereupon the mortgage term, if any, and any other mortgage term or charge by way of legal mortgage affected by the title so acquired shall, subject to any express provision to the contrary contained in the deed, merge in such leasehold reversion or be extinguished.

(4)Where the mortgage includes fixtures or chattels personal, any statutory power of sale and any right to foreclose or take possession shall extend to the absolute or other interest therein affected by the charge.

(5)In the case of a sub-mortgage by subdemise of a term (less a nominal period) itself limited out of a leasehold reversion, the foregoing provisions of this section shall operate as if the derivative term created by the sub-mortgage had been limited out of the leasehold reversion, and so as (subject as aforesaid) to merge the principal mortgage term therein as well as the derivative term created by the sub-mortgage and to enable the sub-mortgagee to convey the leasehold reversion or acquire it by foreclosure, vesting, or otherwise as aforesaid.

(6)This section takes effect without prejudice to any incumbrance or trust affecting the leasehold reversion which has priority over the mortgage in right of which the sale, foreclosure, or title is made or acquired, and applies to a mortgage whether executed before or after the commencement of this Act, and to a mortgage term created by this Act, but does not apply where the mortgage term does not comprise the whole of the land included in the leasehold reversion unless the rent (if any) payable in respect of that reversion has been apportioned as respects the land affected, or the rent is of no money value or no rent is reserved, and unless the lessee’s covenants and conditions (if any) have been apportioned, either expressly or by implication, as respects the land affected.

[F119In this subsection references to an apportionment include an equitable apportionment made without the consent of the lessor.]

[F120(7)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F121£30,000].]

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Amendments (Textual)

F121Words in s. 89(7) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)

Modifications etc. (not altering text)

C62S. 89 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)

90 Realisation of equitable charges by the court.E+W

(1)Where an order for sale is made by the court in reference to an equitable mortgage on land (not secured by a legal term of years absolute or by a charge by way of legal mortgage) 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 create and vest in the mortgagee a legal term of years absolute to enable him to carry out the sale, as the case may require, in like manner as if the mortgage had been created by deed by way of legal mortgage pursuant to this Act, but without prejudice to any incumbrance having priority to the equitable mortgage unless the incumbrancer consents to the sale.

(2)This section applies to equitable mortgages made or arising before or after the commencement of this Act, but not to a mortgage which has been over-reached under the powers conferred by this Act or otherwise.

[F122(3)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F123£30,000]]

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Amendments (Textual)

F123Words in s. 90(3) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.1 (with art. 12)

Modifications etc. (not altering text)

C64S. 90 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)

91 Sale of mortgaged property in action for redemption or foreclosure.E+W

(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 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)This section applies to actions brought either before or after the commencement of this Act.

(6)In this section “mortgaged property” includes the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable.

(7)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 may think fit; or, in the case of an equitable mortgage, may create and vest a mortgage term in the mortgagee to enable him to carry out the sale as if the mortgage had been made by deed by way of legal mortgage.

[F124(8)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F125£30,000]]

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Amendments (Textual)

F125Words in s. 91(8) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)

Modifications etc. (not altering text)

C66S. 91 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)

92 Power to authorise land and minerals to be dealt with separately.E+W

[F126(1)]Where a mortgagee’s power of sale in regard to land has become exercisable but does not extend to the purposes mentioned in this section, the court may, on his application, authorise him and the persons deriving title under him to dispose—

(a)of the land, with an exception or reservation of all or any mines and minerals, and with or without rights and powers of or incidental to the working, getting or carrying away of minerals; or

(b)of all or any mines and minerals, with or without the said rights or powers separately from the land;

and thenceforth the powers so conferred shall have effect as if the same were contained in the mortgage.

[F127(2)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F128£30,000].]

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Amendments (Textual)

F128Words in s. 92(2) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)

Modifications etc. (not altering text)

C68S. 92 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)

93 Restriction on consolidation of mortgages.E+W

(1)A mortgagor seeking to redeem any one mortgage is entitled to do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, solely on property other than that comprised in the mortgage which he seeks to redeem.

This subsection applies only if and as far as a contrary intention is not expressed in the mortgage deeds or one of them.

(2)This section does not apply where all the mortgages were made before the first day of January, eighteen hundred and eighty-two.

(3)Save as aforesaid, nothing in this Act, in reference to mortgages, affects any right of consolidation or renders inoperative a stipulation in relation to any mortgage made before or after the commencement of this Act reserving a right to consolidate.

94 Tacking and further advances.E+W

(1)After the commencement of this Act, a prior mortgagee shall have a right to make further advances to rank in priority to subsequent mortgages (whether legal or equitable)—

(a)if an arrangement has been made to that effect with the subsequent mortgagees; or

(b)if he had no notice of such subsequent mortgages at the time when the further advance was made by him; or

(c)whether or not he had such notice as aforesaid, where the mortgage imposes an obligation on him to make such further advances.

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

(2)In relation to the making of further advances after the commencement of this Act a mortgagee shall not be deemed to have notice of a mortgage merely by reason that it was registered as a land chargeor in a local deeds registry, if it was not so registered at the [F129time when the original mortgage was created] or when the last search (if any) by or on behalf of the mortgagee was made, whichever last happened.

This subsection only applies where the prior mortgage was made expressly for securing a current account or other further advances.

(3)Save in regard to the making of further advances as aforesaid, the right to tack is hereby abolished:

Provided that nothing in this Act shall affect any priority acquired before the commencement of this Act by tacking, or in respect of further advances made without notice of a subsequent incumbrance or by arrangement with the subsequent incumbrancer.

(4)This section applies to mortgages of land made before or after the commencement of this Act, but not to charges [F130on registered land]F130 .

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Amendments (Textual)

Modifications etc. (not altering text)

Marginal Citations

95 Obligation to transfer instead of re-conveying, and as to right to take possession.E+W

(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, he shall be entitled to require the mortgagee, instead of re-conveying or surrendering, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall be bound to assign and convey accordingly.

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

(3)The foregoing provisions of this section do not apply in the case of a mortgagee being or having been in possession.

(4)Nothing in this Act affects prejudicially the right of a mortgagee of land whether or not his charge is secured by a legal term of years absolute to take possession of the land, but the taking of possession by the mortgagee does not convert any legal estate of the mortgagor into an equitable interest.

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

96 Regulations respecting inspection, production and delivery of documents, and priorities.E+W

(1)A mortgagor, as long as his right to redeem subsists, shall be entitled from time to time, 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.

This subsection applies to mortgages made after the thirty-first day of December, eighteen hundred and eighty-one, and takes effect notwithstanding any stipulation to the contrary.

(2)A mortgagee, whose mortgage is surrendered or otherwise extinguished, shall not be liable on account of delivering documents of title in his possession to the person not having the best right thereto, unless he has notice of the right or claim of a person having a better right, whether by virtue of a right to require a surrender or re-conveyance or otherwise.

[F131In this sub-section notice does not include notice implied by reason of registration under the M13Land Charges Act, 1925, [F132or in a local deeds register].]

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Amendments (Textual)

F132Words repealed (prosp.) by Law of Property Act 1969 (c. 59), s. 16(2), Sch. 2 Pt. I which repeal is no longer prospective as regards the Yorkshire deeds registries, their registers and areas

Marginal Citations

97 Priorities as between puisne mortgages.E+W

Every mortgage affecting a legal estate in land made after the commencement of this Act, whether legal or equitable (not being a mortgage protected by the deposit of documents relating to the legal estate affected) shall rank according to its date of registration as a land charge pursuant to the Land Charges Act, 1925.

This section does not apply [F133to mortgages or charges to which the Land Charges Act 1972 does not apply by virtue of section 14(3) of that Act (which excludes certain land charges created by instruments necessitating registration under the [F134Land Registration Act 2002]F134), or] to mortgages or charges of registered landor of land within the jurisdiction of a local deeds registry.

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Amendments (Textual)

Modifications etc. (not altering text)

98 Actions for possession by mortgagors.E+W

(1)A mortgagor for the time being entitled to the possession or receipt of the rents and profits of any land, as to which the mortgagee has not given notice of his intention to take possession or to enter into the receipt of the rents and profits thereof, may sue for such possession, or for the recovery of such rents or profits, or to prevent or 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.

(2)This section does not prejudice the power of a mortgagor independently of this section to take proceedings in his own name only, either in right of any legal estate vested in him or otherwise.

(3)This section applies whether the mortgage was made before or after the commencement of this Act.

99 Leasing powers of mortgagor and mortgagee in possession. E+W

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

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

(3)The leases which this section authorises are—

(i)agricultural or occupation leases for any term not exceeding twenty-one years, or, in the case of a mortgage made after the commencement of this Act, fifty years; and

(ii)building leases for any term not exceeding ninety-nine years, or, in the case of a mortgage made after the commencement of this Act, nine hundred and ninety-nine 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 twelve 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 thirty 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 five 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 connexion 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 five 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)[F135Subject to subsection (13A) below,]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 in writing, and has effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.

[F136(13A)Subsection (13) of this section—

(a)shall not enable the application of any provision of this section to be excluded or restricted in relation to any mortgage of agricultural land made after 1st March 1948 but before 1st September 1995, and

(b)shall not enable the power to grant a lease of an agricultural holding to which, by virtue of section 4 of the Agricultural Tenancies Act 1995, the Agricultural Holdings Act 1986 will apply, to be excluded or restricted in relation to any mortgage of agricultural land made on or after 1st September 1995.

F136(13B)In subsection (13A) of this section—

  • agricultural holding” has the same meaning as in the Agricultural Holdings Act 1986; and

  • agricultural land” has the same meaning as in the Agriculture Act 1947.]

(14)The mortgagor and mortgagee may, by agreement in writing, whether or not contained in the mortgage deed, reserve to or confer 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:

Provided that the powers so reserved or conferred shall not prejudicially affect the rights of any mortgagee interested under any other mortgage subsisting at the date of the agreement, unless that mortgagee joins in or adopts the agreement.

(15)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 and the enactments replaced by this section had not been passed:

Provided that, in the case of a mortgage of leasehold land, a lease granted under this section shall reserve a reversion of not less than one day.

(16)Subject as aforesaid, this section applies to any mortgage made after the thirty-first day of December, eighteen hundred and eighty-one, but the provisions thereof, or any of them, may, by agreement in writing made after that date between mortgagor and mortgagee, be applied to a mortgage made before that date, so nevertheless that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

(17)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.

(18)For the purposes of this section “mortgagor” does not include an incumbrancer deriving title under the original mortgagor.

(19)The powers of leasing conferred by this section shall, after a receiver of the income of the mortgaged property or any part thereof has been appointed by a mortgagee under his statutory power, and so long as the receiver acts, be exercisable by such mortgagee instead of by the mortgagor, as respects any land affected by the receivership, in like manner as if such mortgagee were in possession of the land, and the mortgagee may, by writing, delegate any of such powers to the receiver.

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Amendments (Textual)

F135Words in s. 99(13) inserted (1.9.1995) by 1995 c. 8, ss. 31(1)(2), 41(2), (with s. 37)

F136S. 99(13A)(13B) inserted (1.9.1995) by 1995 c. 8, ss. 31(3), 41(2) (with s. 37)

Modifications etc. (not altering text)

100 Powers of mortgagor and mortgagee in possession to accept surrenders of leases.E+W

(1)For the purpose only of enabling a lease authorised under the last preceding section, or under any agreement made pursuant to that section, or by the mortgage deed (in this section referred to as an authorised lease) to be granted, a mortgagor of land while in possession shall, as against every incumbrancer, have, by virtue of this Act, power to accept from time to time a surrender of any lease of the mortgaged land or any part thereof comprised in the lease, with or without an exception of or in respect of all or any of the mines and minerals therein, and, on a surrender of the lease so far as it comprises part only of the land or mines and minerals leased, the rent may be apportioned.

(2)For the same purpose, a mortgagee of land while in possession shall, as against all prior or other incumbrancers, if any, and as against the mortgagor, have, by virtue of this Act, power to accept from time to time any such surrender as aforesaid.

(3)On a surrender of part only of the land or mines and minerals leased, the original lease may be varied, provided that the lease when varied would have been valid as an authorised lease if granted by the person accepting the surrender; and, on a surrender and the making of a new or other lease, whether for the same or for any extended or other term, and whether subject or not to the same or to any other covenants, provisions, or conditions, the value of the lessee’s interest in the lease surrendered may, subject to the provisions of this section, be taken into account in the determination of the amount of the rent to be reserved, and of the nature of the covenants, provisions, and conditions to be inserted in the new or other lease.

(4)Where any consideration for the surrender, other than an agreement to accept an authorised lease, is given by or on behalf of the lessee to or on behalf of the person accepting the surrender, nothing in this section authorises a surrender to a mortgagor without the consent of the incumbrancers, or authorises a surrender to a second or subsequent incumbrancer without the consent of every prior incumbrancer.

(5)No surrender shall, by virtue of this section, be rendered valid unless:—

(a)An authorised lease is granted of the whole of the land or mines and minerals comprised in the surrender to take effect in possession immediately or within one month after the date of the surrender; and

(b)The term certain or other interest granted by the new lease is not less in duration than the unexpired term or interest which would have been subsisting under the original lease if that lease had not been surrendered; and

(c)Where the whole of the land mines and minerals originally leased has been surrendered, the rent reserved by the new lease is not less than the rent which would have been payable under the original lease if it had not been surrendered; or where part only of the land or mines and minerals has been surrendered, the aggregate rents respectively remaining payable or reserved under the original lease and new lease are not less than the rent which would have been payable under the original lease if no partial surrender had been accepted.

(6)A contract to make or accept a surrender under this section may be enforced by or against every person on whom the surrender, if completed, would be binding.

(7)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 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.

(8)This section applies to a mortgage made after the thirty-first day of December, nineteen hundred and eleven, but the provisions of this section, or any of them, may, by agreement in writing made after that date, between mortgagor and mortgagee, be applied to a mortgage made before that date, so nevertheless that any such agreement shall not prejudicially affect any right or interest of any mortgagee not joining in or adopting the agreement.

(9)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.

(10)The mortgagor and mortgagee may, by agreement in writing, whether or not contained in the mortgage deed, reserve or confer on the mortgagor or mortgagee, or both, any further or other powers relating to the surrender of leases; and any further or other powers so conferred or reserved 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:

Provided that the powers so reserved or conferred shall not prejudicially affect the rights of any mortgagee interested under any other mortgage subsisting at the date of the agreement, unless that mortgagee joins in or adopts the agreement.

(11)Nothing in this section operates to enable a mortgagor or mortgagee to accept a surrender which could not have been accepted by the mortgagor with the concurrence of all the incumbrancers if this Act and the enactments replaced by this section had not been passed.

(12)For the purposes of this section “mortgagor” does not include an incumbrancer deriving title under the original mortgagor.

(13)The powers of accepting surrenders conferred by this section shall, after a receiver of the income of the mortgaged property or any part thereof has been appointed by the mortgagee, under the statutory power, and so long as the receiver acts, be exercisable by such mortgagee instead of by the mortgagor, as respects any land affected by the receivership, in like manner as if such mortgagee were in possession of the land; and the mortgagee may, by writing, delegate any of such powers to the receiver.

101 Powers incident to estate or interest of mortgagee.E+W

(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):

(i)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, subject to such conditions respecting title, or evidence of title, or other matter, as 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; and

(ii)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

(iii)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 rentcharge or an annual or other periodical sum, a receiver of that property or any part thereof; and

(iv)A power, while the mortgagee is in possession, to cut and sell timber and other trees ripe for cutting, and 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 twelve months from the making of the contract.

[F137(1A)Subsection (1)(i) is subject to section 21 of the Commonhold and Leasehold Reform Act 2002 (no disposition of part-units)]

F137(2)Where the mortgage deed is executed after the thirty-first day of December, nineteen hundred and eleven, the power of sale aforesaid includes the following powers as incident thereto (namely):—

(i)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:

(ii)A power to sell the mortgaged property, or any part thereof, or all or any mines and minerals apart from the surface:—

(a)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 in mortgage or any part thereof, or to any property sold: and

(b)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 or 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

(c)With or without convenants 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 applies only if and as far as a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed and to the provisions therein contained.

(5)Save as otherwise provided, this section applies where the mortgage deed is executed after the thirty-first day of December, eighteen hundred and eighty-one.

(6)The power of sale conferred by this section includes such power of selling the estate in fee simple or any leasehold reversion as is conferred by the provisions of this Act relating to the realisation of mortgages.

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Amendments (Textual)

Modifications etc. (not altering text)

C76S. 101 excluded (28.6.1995) by 1995 c. iii, s. 10(3) (with s. 25)

102 Provision as to mortgages of undivided shares in land.E+W

(1)A person who was before the commencement of this Act a mortgagee of an undivided share in land shall have the same power to sell his [F138interest under the trust to which the land is subject], as, independently of this Act, he would have had in regard to the share in the land; and shall also have a right to require the [F138trustees] in whom the land is vested to account to him for the income attributable to that share or to appoint a receiver to receive the same from such trustees corresponding to the right which, independently of this Act, he would have had to take possession or to appoint a receiver of the rents and profits attributable to the same share.

(2)The powers conferred by this section are exercisable by the persons deriving title under such mortgagee.

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Amendments (Textual)

103 Regulation of exercise of power of sale.E+W

A mortgagee shall not exercise the power of sale conferred by this Act unless and until—

(i)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 three months after such service; or

(ii)Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or

(iii)There has been a breach of some provision contained in the mortgage deed or in this Act, or in an enactment replaced by 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.

104 Conveyance on sale.E+W

(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 he is by this Act authorised to sell or convey or 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 is made in exercise of the power of sale conferred by this Act, or any enactment replaced 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)where the mortgage is made after the commencement of this Act, that leave of the court, when so required, was not obtained; or

(d)whether the mortgage was made before or after such commencement, that the power was otherwise improperly or irregularly exercised;

and a purchaser is not, either before or on conveyance, 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 on sale by a mortgagee, made after the commencement of this Act, shall be deemed to have been made in exercise of the power of sale conferred by this Act unless a contrary intention appears.

105 Application of proceeds of sale.E+W

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, 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.

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Modifications etc. (not altering text)

106 Provisions as to exercise of power of sale.E+W

(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 does 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, where the mortgage is executed after the thirty-first day of December, nineteen hundred and eleven, 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.

107 Mortgagee’s receipts, discharges, &c. E+W

(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.

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Modifications etc. (not altering text)

108 Amount and application of insurance money.E+W

(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, 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):

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

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

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

(3)All money received on an insurance of mortgaged property against loss or damage by fire or otherwise effected under this Act, or any enactment replaced by this Act, or on an insurance for the maintenance of which the mortgagor is liable under the mortgage deed, 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 of mortgaged property against loss or damage by fire or otherwise effected under this Act, or any enactment replaced by this Act, or on an insurance for the maintenance of which the mortgagor is liable under the mortgage deed, be applied in or towards the discharge of the mortgage money.

109 Appointment, powers, remuneration and duties of receiver.E+W

(1)A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.

(2)A receiver appointed under the powers conferred by this Act, or any enactment replaced by this Act, 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 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, and to exercise any powers which may have been delegated to him by the mortgagee pursuant to this Act.

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

(5)The receiver may be removed, and a new receiver may be appointed, from time to time 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 five 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 five per centum on that gross amount, or at such other 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 to the extent, if any, to which the mortgagee might have insured 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)Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all money received by him as follows, namely:

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

(ii)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; and

(iii)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

(iv)In payment of the interest accruing due in respect of any principal money due under the mortgage; and

(v)In or towards discharge of the principal money if so directed in writing by the mortgagee;

and shall pay the residue, if any, 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 which he is appointed receiver, or who is otherwise entitled to the mortgaged property.

110 Effect of bankruptcy of the mortgagor on the power to sell or appoint a receiver.E+W

(1)Where the statutory or express power for a mortgagee either to sell or to appoint a receiver is made exercisable by reason of the mortgagor F139. . . being adjudged a bankrupt, such power shall not be exercised only on account of the F139. . . adjudication, without the leave of the court.

(2)This section applies only where the mortgage deed is executed after the commencement of this Act. F139. . .

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Amendments (Textual)

111 Effect of advance on joint account.E+W

(1)Where—

(a)in a mortgage, or an obligation for payment of money, or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or as money, belonging to them on a joint account; or

(b)a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly;

the mortgage money, or other money or money’s worth, for the time being due to those persons on the mortgage or obligation, shall, as between them and the mortgagor or obligor, be deemed to be and remain money or money’s worth belonging to those persons on a joint account; and the receipt in writing of the survivors or last survivor of them, or of the personal representative of the last survivor, shall be a complete discharge for all money or money’s worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account.

(2)This section applies if and so far as a contrary intention is not expressed in the mortgage, obligation, or transfer, and has effect subject to the terms of the mortgage, obligation, or transfer, and to the provisions therein contained.

(3)This section applies to any mortgage obligation or transfer made after the thirty-first day of December, eighteen hundred and eighty-one.

112 Notice of trusts on transfer of mortgage.E+W

F140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

113 Notice of trusts affecting mortgage debts.E+W

(1)A person dealing in good faith with a mortgagee, or with the mortgagor if the mortgage has been discharged released or postponed as to the whole or any part of the mortgaged property, shall not be concerned with any trust at any time affecting the mortgage money or the income thereof, whether or not he has notice of the trust, and may assume unless the contrary is expressly stated in the instruments relating to the mortgage—

(a)that the mortgagees (if more than one) are or were entitled to the mortgage money on a joint account; and

(b)that the mortgagee has or had power to give valid receipts for the purchase money or mortgage money and the income thereof (including any arrears of interest) and to release or postpone the priority of the mortgage debt or any part thereof or to deal with the same or the mortgaged property or any part thereof;

without investigating the equitable title to the mortgage debt or the appointment or discharge of trustees in reference thereto.

(2)This section applies to mortgages made before or after the commencement of this Act, but only as respects dealings effected after such commencement.

(3)This section does not affect the liability of any person in whom the mortgage debt is vested for the purposes of any trust to give effect to that trust.

114 Transfers of mortgages.E+W

(1)A deed executed by a mortgagee purporting to transfer his mortgage or the benefit thereof shall, unless a contrary intention is therein expressed, and subject to any provisions therein contained, operate to transfer to the transferee—

(a)the right to demand, sue for, recover, and give receipts for, the mortgage money or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon; and

(b)the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee; and

(c)all the estate and interest in the mortgaged property then vested in the mortgagee subject to redemption or cesser, but as to such estate and interest subject to the right of redemption then subsisting.

(2)In this section “transferee” includes his personal representatives and assigns.

(3)A transfer of mortgage may be made in the form contained in the Third Schedule to this Act with such variations and additions, if any, as the circumstances may require.

(4)This section applies, whether the mortgage transferred was made before or after the commencement of this Act, but applies only to transfers made after the commencement of this Act.

(5)This section does not extend to a transfer of a bill of sale of chattels by way of security.

115 Reconveyances of mortgages by endorsed receipts.E+W

(1)A receipt endorsed on, written at the foot of, or annexed to, a mortgage for all money thereby secured, which states the name of the person who pays the money and is executed by the chargee by way of legal mortgage or the person in whom the mortgaged property is vested and who is legally entitled to give a receipt for the mortgage money shall operate, without any reconveyance, surrender, or release—

(a)Where a mortgage takes effect by demise or subdemise, as a surrender of the term, so as to determine the term or merge the same in the reversion immediately expectant thereon;

(b)Where the mortgage does not take effect by demise or subdemise, as a reconveyance thereof to the extent of the interest which is the subject matter of the mortgage, to the person who immediately before the execution of the receipt was entitled to the equity of redemption;

and in either case, as a discharge of the mortgaged property from all principal money and interest secured by, and from all claims under the mortgage, but without prejudice to any term or other interest which is paramount to the estate or interest of the mortgagee or other person in whom the mortgaged property was vested.

(2)Provided that, where by the receipt the money appears to have been paid by a person who is not entitled to the immediate equity of redemption, the receipt shall operate as if the benefit of the mortgage had by deed been transferred to him; unless—

(a)it is otherwise expressly provided; or

(b)the mortgage is paid off out of capital money, or other money in the hands of a personal representative or trustee properly applicable for the discharge of the mortgage, and it is not expressly provided that the receipt is to operate as a transfer.

(3)Nothing in this section confers on a mortgagor a right to keep alive a mortgage paid off by him, so as to affect prejudicially any subsequent incumbrancer; and where there is no right to keep the mortgage alive, the receipt does not operate as a transfer.

(4)This section does not affect the right of any person to require a reassignment, surrender, release, or transfer to be executed in lieu of a receipt.

(5)A receipt may be given in the form contained in the Third Schedule to this Act, with such variations and additions, if any, as may be deemed expedient; F141. . .

(6)In a receipt given under this section the same covenants shall be implied as if the person who executes the receipt had by deed been expressed to convey the property as mortgagee, subject to any interest which is paramount to the mortgage.

(7)Where the mortgage consists of a mortgage and a further charge or of more than one deed, it shall be sufficient for the purposes of this section, if the receipt refers either to all the deeds whereby the mortgage money is secured or to the aggregate amount of the mortgage money thereby secured and for the time being owing, and is endorsed on, written at the foot of, or annexed to, one of the mortgage deeds.

(8)This section applies to the discharge of a charge by way of legal mortgage, and to the discharge of a mortgage, whether made by way of statutory mortgage or not, executed before or after the commencement of this Act, but only as respects discharges effected after such commencement.

(9)The provisions of this section relating to the operation of a receipt shall (in substitution for the like statutory provisions relating to receipts given by or on behalf of a building F142. . . society) apply to the discharge of a mortgage made to any such society, provided that the receipt is executed in the manner required by the statute relating to the society F141. . .

(10)This section does not apply to the discharge of a [F143registered charge (within the meaning of the Land Registration Act 2002)]F143.

(11)In this section “mortgaged property” means the property remaining subject to the mortgage at the date of the receipt.

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Amendments (Textual)

Modifications etc. (not altering text)

116 Cesser of mortgage terms.E+W

Without prejudice to the right of a tenant for life or other person having only a limited interest in the equity of redemption to require a mortgage to be kept alive by transfer or otherwise, a mortgage term shall, when the money secured by the mortgage has been discharged, become a satisfied term and shall cease.

117 Forms of statutory legal charges.E+W

(1)As a special form of charge by way of legal mortgage, a mortgage of freehold or leasehold land may be made by a deed expressed to be made by way of statutory mortgage, being in one of the forms (Nos. 1 or 4) set out in the Fourth Schedule to this Act, with such variations and additions, if any, as circumstances may require, and if so made 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 such a mortgage deed—

  • First, a covenant with the mortgagee by the person therein expressed to charge 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, and will thereafter, if and as long as the mortgage money or any part thereof remains unpaid, pay to the mortgagee (as well after as before any judgment is obtained under the mortgage) interest thereon, or on the unpaid part thereof, at the stated rate, by equal half-yearly payments the first thereof to be made at the end of six months from the day stated for payment of the mortgage money:

  • Secondly, a provision to the following effect (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 discharge the mortgaged property or transfer the benefit of the mortgage as the mortgagor may direct.

This subsection applies to a mortgage deed made under section twenty-six of the M14Conveyancing Act, 1881, with a substitution of a reference to “the person therein expressed to convey as mortgagor” for the reference in this subsection to “the person therein expressed to charge as mortgagor.”

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Marginal Citations

118 Forms of statutory transfers of legal charges.E+W

(1)A transfer of a statutory mortgage may be made by a deed expressed to be made by way of statutory transfer of mortgage, being in such one of the three forms (Nos. 2, 3 or 4) set out in the Fourth Schedule to this Act as may be appropriate to the case with such variations and additions, if any, as circumstances may require, and if so made the provisions of this section shall apply thereto.

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

(i)There shall become vested in the person to whom the benefit of the mortgage is expressed to be transferred (who, with his personal representatives and assigns, is in this section designated the transferee), the right to demand, sue for, recover, and give receipts for the mortgage money, or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon, and the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee:

(ii)All the term and interest, if any, subject to redemption, of the mortgagee in the mortgaged land shall vest in the transferee, subject to redemption.

(3)If a covenantor joins in the deed of transfer, there shall also be deemed to be included, and there shall by virtue of this Act be implied therein, a covenant with the transferee by the person expressed to join therein as covenantor to the effect following (namely):

That the covenantor will, on the next of the days by the mortgage deed fixed for payment of interest pay to the transferee the stated mortgage money, or so much thereof as then remains unpaid, with interest thereon, or on the unpaid part thereof, in the meantime, at the rate stated in the mortgage deed; and will thereafter, as long as the mortgage money or any part thereof remains unpaid, pay to the transferee interest on that sum, or the unpaid part thereof, at the same rate, on the successive days by the mortgage deed fixed for payment of interest.

(4)If the deed of transfer is made in the Form No. 4, it shall, by virtue of this Act, operate not only as a statutory transfer of mortgage, but also as a statutory mortgage, and the provisions of this section shall have effect in relation thereto accordingly; but it shall not be liable to any increased stamp duty by reason only of it being designated a mortgage.

(5)This section applies to the transfer of a statutory mortgage created under any enactment replaced by this Act.

119 Implied covenants, joint and several.E+W

In a deed of statutory mortgage, or of statutory transfer of mortgage, where more persons than one are expressed to convey or charge as mortgagors, or to join as covenantors, the implied covenant on their part shall be deemed to be a joint and several covenant by them; and where there are more mortgagees or more transferees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him.

120 Form of discharge of statutory mortgage or charge.E+W

A statutory mortgage may be surrendered or discharged by a receipt in the form (No. 5) set out in the Fourth Schedule to this Act with such variations and additions, if any, as circumstances may require.

RentchargesE+W

121 Remedies for the recovery of annual sums charged on land. E+W

(1)Where a person is entitled to receive out of any land, or out of the income of any land, any annual sum, payable half-yearly or otherwise, whether charged on the land or on the income of the land, and whether by way of rentcharge or otherwise not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the annual sum shall have such remedies for recovering and compelling payment thereof as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further.

(2)If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid.

(3)If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by nonpayment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of waste.

(4)In the like case the person entitled to the annual sum, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by all or any of the means hereinafter mentioned, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by nonpayment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed:

Provided that this subsection shall not authorise the creation of a legal term of years absolute after the commencement of this Act, save where the annual sum is a rentcharge held for a legal estate.

The surplus, if any, of the money raised, or of the income received, under the trusts of the deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.

The means by which such annual sum, arrears, costs, and expenses may be raised includes—

(a)the creation of a legal mortgage or a sale (effected by assignment or subdemise) of the term created in the land charged or any part thereof,

(b)the receipt of the income of the land comprised in the term.

(5)This section applies only if and as far as a contrary intention is not expressed in the instrument under which the annual sum arises, and has effect subject to the terms of that instrument and to the provisions therein contained.

(6)The rule of law relating to perpetuities does not apply to any powers or remedies conferred by this section . . . F144

(7)The powers and remedies conferred by this section apply where the instrument creating the annual sum comes into operation after the thirty-first day of December, eighteen hundred and eighty-one, and whether the instrument conferring the power under which the annual sum was authorised to be created came into operation before or after that date, unless the instrument creating the power or under which the annual sum is created otherwise directs.

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Amendments (Textual)

Modifications etc. (not altering text)

122 Creation of rentcharges charged on another rentcharge and remedies for recovery thereof. E+W

(1)A rentcharge or other annual sum (not being rent incident to a reversion) payable half yearly or otherwise may be granted, reserved, charged or created out of or on another rentcharge or annual sum (not being rent incident to a reversion) charged on or payable out of land or on or out of the income of land, in like manner as the same could have been made to issue out of land.

(2)If at any time the annual sum so created or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum shall (without prejudice to any prior interest or charge) have power to appoint a receiver of the annual sum charged or any part thereof, and the provisions of this Act relating to the appointment, powers, remuneration and duties of a receiver, shall apply in like manner as if such person were a mortgagee entitled to exercise the power of sale conferred by this Act, and the annual sum charged were the mortgaged property and the person entitled thereto were the mortgagor.

(3)The power to appoint a receiver conferred by this section shall (where the annual sum is charged on a rentcharge) take effect in substitution for the remedies conferred, in the case of annual sums charged on land, by the last preceding section, but subsection (6) of that section shall apply and have effect as if herein re-enacted and in terms made applicable to the powers conferred by this section.

(4)This section applies to annual sums expressed to be created before as well as after the commencement of this Act, and, but without prejudice to any order of the court made before the commencement of this Act, operates to confirm any annual sum which would have been validly created if this section had been in force.

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Modifications etc. (not altering text)

Powers of AttorneyE+W

123. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F145E+W

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Amendments (Textual)

124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F146E+W

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Amendments (Textual)

125 †Powers of attorney relating to land to be filed.E+W

F147(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Notwithstanding any stipulation to the contrary, a purchaser of any interest in or charge upon land [F148(not being registered land)]F148 shall be entitled to have any instrument creating a power of attorney which affects his title, or [F149a copy] thereof or of the material portions thereof delivered to him free of expense.

(3)This section only applies to instruments executed after the commencement of this Act, and no right to rescind a contract shall arise by reason of the enforcement of the provisions of this section.

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Amendments (Textual)

126–129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F150E+W

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Amendments (Textual)

Part IV E+W Equitable Interests and things in Action

130F151. . . Entailed interests in real and personal property.E+W

F152(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F152(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F152(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In default of and subject to the execution of a disentailing assurance or the exercise of the testamentary power conferred by this Act, an entailed interest (to the extent of the property affected) shall devolve as an equitable interest, from time to time, upon the persons who would have been successively entitled thereto as the heirs of the body (either generally or of a particular class) of the tenant in tail or other person, or as tenant by the curtesy, if the entailed interest had, before the commencement of this Act, been limited in respect of freehold land governed by the general law in force immediately before such commencement, and such law had remained unaffected.

(5)Where personal chattels are settled without reference to settled land on trusts creating entailed interests therein, the trustees, with the consent of the usufructuary for the time being if of full age, may sell the chattels or any of them, and the net proceeds of any such sale shall be held in trust for and shall go to the same persons successively, in the same manner and for the same interests, as the chattels sold would have been held and gone if they had not been sold, and the income of investments representing such proceeds of sale shall be applied accordingly.

F152(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)In this Act where the context so admits “entailed interest” includes an estate tail (now made to take effect as an equitable interest) created before the commencement of this Act.

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Amendments (Textual)

F151Words in sidenote to s. 130 repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art.2

131 Abolition of the rule in Shelley’s case.E+W

Where by any instrument coming into operation after the commencement of this Act an interest in any property is expressed to be given to the heir or heirs or issue or any particular heir or any class of the heirs or issue of any person in words which, but for this section [F153(and paragraph 5 of Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996)] would, under the rule of law known as the Rule in Shelley’s case, have operated to give to that person an interest in fee simple or an entailed interest, such words shall operate in equity as words of purchase and not of limitation, and shall be construed and have effect accordingly, and in the case of an interest in any property expressed to be given to an heir or heirs or any particular heir or class of heirs, the same person or persons shall take as would in the case of freehold land have answered that description under the general law in force before the commencement of this Act.

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Amendments (Textual)

132 As to heirs taking by purchase.E+W

(1)A limitation of real or personal property in favour of the heir, either general or special, of a deceased person which, if limited in respect of freehold land before the commencement of this Act, would have conferred on the heir an estate in the land by purchase, shall operate to confer a corresponding equitable interest in the property on the person who would, if the general law in force immediately before such commencement had remained unaffected, have answered the description of the heir, either general or special, of the deceased in respect of his freehold land, either at the death of the deceased or at the time named in the limitation, as the case may require.

(2)This section applies whether the deceased person dies before or after the commencement of this Act, but only applies to limitations or trusts created by an instrument coming into operation after such commencement.

133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F154E+W

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Amendments (Textual)

134 Restriction on executory limitations.E+W

(1)Where there is a person entitled to—

(a)an equitable interest in land for an estate in fee simple or for any less interest not being an entailed interest, or

(b)any interest in other property, not being an entailed interest,

with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained [F155the age of eighteen years] of the class on default or failure whereof the limitation over was to take effect.

(2)This section applies where the executory limitation is contained in an instrument coming into operation after the thirty-first day of December, eighteen hundred and eighty-two, save that, as regards instruments coming into operation before the commencement of this Act, it only applies to limitations of land for an estate in fee, or for a term of years absolute or determinable on life, or for a term of life.

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Amendments (Textual)

135 Equitable waste.E+W

An equitable interest for life without impeachment of waste does not confer upon the tenant for life any 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 equitable interest.

136 Legal assignments of things in action.E+W

(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 thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

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

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M15Trustee Act, 1925.

(2)This section does not affect the provisions of the M16Policies of Assurance Act, 1867.

[F156(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F157£30,000].]

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Amendments (Textual)

F157Words in s. 136(3) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt. I (with art. 12)

Modifications etc. (not altering text)

C86S. 136(1) proviso extended (1.7.1991) by S.I. 1991/724, art. 2(5) (with art. 12)

Marginal Citations

137 Dealings with life interests, reversions and other equitable interests. E+W

(1)The law applicable to dealings with equitable things in action which regulates the priority of competing interests therein, shall, as respects dealings with equitable interests in land, capital money, and securities representing capital money effected after the commencement of this Act, apply to and regulate the priority of competing interests therein.

This subsection applies whether or not the money or securities are in court.

(2)(i)In the case of a dealing with an equitable interest in settled land, capital money or securities representing capital money, the persons to be served with notice of the dealing shall be the trustees of the settlement; and where the equitable interest is created by a derivative or subsidiary settlement, the persons to be served with notice shall be the trustees of that settlement.

(ii)In the case of a dealing with an equitable interest in [F158land subject to a trust of land, or the proceeds of the sale of such land, the persons to be served with notice shall be the trustees.]

(iii)In any other case the person to be served with notice of a dealing with an equitable interest in land shall be the estate owner of the land affected.

The persons on whom notice is served pursuant to this subsection shall be affected thereby in the same manner as if they had been trustees of personal property out of which the equitable interest was created or arose.

This subsection does not apply where the money or securities are in court.

(3)A notice, otherwise than in writing, given to, or received by, a trustee after the commencement of this Act as respects any dealing with an equitable interest in real or personal property, shall not affect the priority of competing claims of purchasers in that equitable interest.

(4)Where, as respects any dealing with an equitable interest in real or personal property—

(a)the trustees are not persons to whom a valid notice of the dealing can be given; or

(b)there are no trustees to whom a notice can be given; or

(c)for any other reason a valid notice cannot be served, or cannot be served without unreasonable cost or delay;

a purchaser may at his own cost require that—

(i)a memorandum of the dealing be endorsed, written on or permanently annexed to the instrument creating the trust;

(ii)the instrument be produced to him by the person having the possession or custody thereof to prove that a sufficient memorandum has been placed thereon or annexed thereto.

Such memorandum shall, as respects priorities, operate in like manner as if notice in writing of the dealing had been given to trustees duly qualified to receive the notice at the time when the memorandum is placed on or annexed to the instrument creating the trust.

(5)Where the property affected is settled land, the memorandum shall be placed on or annexed to the trust instrument and not the vesting instrument.

Where the property affected is land [F159subject to a trust of land], the memorandum shall be placed on or annexed to the instrument whereby the equitable interest is created.

(6)Where the trust is created by statute or by operation of law, or in any other case where there is no instrument whereby the trusts are declared, the instrument under which the equitable interest is acquired or which is evidence of the devolution thereof shall, for the purposes of this section, be deemed the instrument creating the trust.

In particular, where the trust arises by reason of an intestacy, the letters of administration or probate in force when the dealing was effected shall be deemed such instrument.

(7)Nothing in this section affects any priority acquired before the commencement of this Act.

(8)Where a notice in writing of a dealing with an equitable interest in real or personal property has been served on a trustee under this section, the trustees from time to time of the property affected shall be entitled to the custody of the notice, and the notice shall be delivered to them by any person who for the time being may have the custody thereof; and subject to the payment of costs, any person interested in the equitable interest may require production of the notice.

(9)The liability of the estate owner of the legal estate affected to produce documents and furnish information to persons entitled to equitable interests therein shall correspond to the liability of a trustee for sale to produce documents and furnish information to persons entitled to equitable interests in the proceeds of sale of the land.

(10)This section does not apply until a trust has been created, and in this section “dealing” includes a disposition by operation of law.

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Amendments (Textual)

Modifications etc. (not altering text)

138 Power to nominate a trust corporation to receive notices.E+W

(1)By any settlement or other instrument creating a trust, a trust corporation may be nominated to whom notices of dealings affecting real or personal property may be given, whether or not under the foregoing section, and in default of such nomination the trustees (if any) of the instrument, or the court on the application of any person interested, may make the nomination.

(2)The person having the possession or custody of any instrument on which notices under that section may be endorsed shall cause the name of the trust corporation to whom notices may be given to be endorsed upon that instrument.

(3)Notice given to any trust corporation whose name is so endorsed shall operate in the same way as a notice or endorsement under the foregoing section.

(4)Where a trust corporation is acting for the purposes of this section a notice given to a trustee of the trust instrument of a dealing relating to the trust property shall forthwith be delivered or sent by post by the trustee to the trust corporation, and until received by the corporation shall not affect any priority.

(5)A trust corporation shall not be nominated for the purposes of this section—

(a)unless that corporation consents to act; or

(b)where that corporation has any beneficial interest in or charge upon the trust property; or

(c)where a trust corporation is acting as the trustee or one of the trustees of the instrument creating the trust.

(6)Where a trust corporation acting for the purposes of this section becomes entitled to any beneficial interest in or charge upon the trust property, another trust corporation shall be nominated in its place and all documents relating to notices affecting the trust shall be delivered to the corporation so nominated.

(7)A trust corporation acting for the purposes of this section shall be bound to keep a separate register of notices of dealings in respect of each equitable interest and shall enter therein—

(a)the date of the notice;

(b)the name of the person giving the notice;

(c)short particulars of the equitable interest intended to be affected; and

(d)short particulars of the effect of the dealing if mentioned in the notice.

(8)The trust corporation may, before making any entry in the register, require the applicant to pay a fee not exceeding the prescribed fee.

(9)Subject to the payment of a fee not exceeding the prescribed fee, the trust corporation shall permit any person who would, if the corporation had been the trustee of the trust instrument, have been entitled to inspect notices served on the trustee, to inspect and take copies of the register and any notices held by the corporation.

(10)Subject to the payment by the applicant of a fee not exceeding the prescribed fee, the trust corporation shall reply to all inquiries respecting notices received by the corporation in like manner and in the same circumstances as if the corporation had been the trustee of the trust instrument.

(11)In this section “prescribed fee” means the fee prescribed [F160by the Lord Chancellor]F160 in cases where the Public Trustee acts as a trust corporation for the purposes of this section.

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Amendments (Textual)

Modifications etc. (not altering text)

Part V E+W Leases and Tenancies

139 Effect of extinguishment of reversion. E+W

(1)Where a reversion expectant on a lease of land is surrendered or merged, the estate or interest which as against the lessee for the time being confers the next vested right to the land, shall be deemed the reversion for the purpose of preserving the same incidents and obligations as would have affected the original reversion had there been no surrender or merger thereof.

(2)This section applies to surrenders or mergers effected after the first day of October, eighteen hundred and forty-five.

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Modifications etc. (not altering text)

140 Apportionment of conditions on severance.E+W

(1)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 the part of the land as to which the term has not been surrendered, or 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.

(2)In this section “right of re-entry” includes a right to determine the lease by notice to quit or otherwise; but where the notice is served by a person entitled to a severed part of the reversion so that it extends to part only of the land demised, the lessee may within one month determine the lease in regard to the rest of the land by giving to the owner of the reversionary estate therein a counter notice expiring at the same time as the original notice.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F161

(3)This section applies to leases made before or after the commencement of this Act and whether the severance of the reversionary estate or the partial avoidance or cesser of the term was effected before or after such commencement:

Provided that, where the lease was made before the first day of January eighteen hundred and eighty-two nothing in this section shall affect the operation of a severance of the reversionary estate or partial avoidance or cesser of the term which was effected before the commencement of this Act.

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Amendments (Textual)

Modifications etc. (not altering text)

C93S. 140 amended (1.9.1995) by 1995 c. 8, ss. 5(3)(4), 41(2), (with s. 37)

141 Rent and benefit of lessee’s covenants to run with the reversion. E+W

(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 without prejudice to any liability affecting a covenantor or his estate.

(2)Any such rent, covenant or provision 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.

(3)Where that person becomes entitled by conveyance or otherwise, such rent, covenant or provision may be recovered, received, enforced or taken advantage of by him notwithstanding that he becomes so entitled after the condition of re-entry or forfeiture has become enforceable, but this subsection does not render enforceable any condition of re-entry or other condition waived or released before such person becomes entitled as aforesaid.

(4)This section applies to leases made before or after the commencement of this Act, but does not affect the operation of—

(a)any severance of the reversionary estate; or

(b)any acquisition by conveyance or otherwise of the right to receive or enforce any rent covenant or provision;

effected before the commencement of this Act.

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Modifications etc. (not altering text)

C95S. 141 excluded (6.4.1992) by S.I. 1992/581, art. 5(2)

C96S. 141 excluded (11.10.1993) by Housing Act 1988 c. 50, s.84A (as inserted (11.10.1993) by 1993 c. 28, s. 125(5) (with ss. 94(2), 95); S.I. 1993/2134, arts. 2,4)); and (31.3.1994) by S.I. 1994/566, art. 5(2); and (1.1.1996) by 1995 c. 30, s. 30(4)(b) (with ss. 2(2), 26(1)(2)); S.I. 1995/2963, art. 2; and (25.9.1995) by S.I. 1995/2248, art. 5(2)

142 Obligation of lessor’s covenants to run with reversion.E+W

(1)The obligation under a condition or 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 to leases made before or after the commencement of this Act, whether the severance of the reversionary estate was effected before or after such commencement:

Provided that, where the lease was made before the first day of January eighteen hundred and eighty-two, nothing in this section shall affect the operation of any severance of the reversionary estate effected before such commencement.

This section takes effect without prejudice to any liability affecting a covenantor or his estate.

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Modifications etc. (not altering text)

C97S. 142 excluded (1.1.1996) by 1995 c. 30, s. 30(4)(b) (with ss. 2(2), 26(1)(2)); S.I. 1995/2963, art. 2

143 Effect of licences granted to lessees.E+W

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

(a)to the permission actually given; or

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

(c)to any other matter thereby specifically authorised 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 other matter not specifically authorised 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 authorised 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—

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

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

This subsection does not authorise the grant after the commencement of this Act of a licence to create an undivided share in a legal estate.

(4)This section applies to licences granted after the thirteenth day of August, eighteen hundred and fifty-nine.

144 No fine to be exacted for licence to assign.E+W

In all leases containing a covenant, condition, or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition, or agreement shall, unless the lease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent; but this proviso does not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent.

145 Lessee to give notice of ejectment to lessor.E+W

Every lessee to whom there is delivered any writ for the recovery of premises demised to or held by him, or to whose knowledge any such writ comes, shall forthwith give notice thereof to his lessor or his bailiff or receiver, and, if he fails so to do, he shall be liable to forfeit to the person of whom he holds the premises an amount equal to the value of three years’ improved or rack rent of the premises, to be recovered by action in any court having jurisdiction in respect of claims for such an amount.

146 Restrictions on and relief against forfeiture of leases and underleases.E+W

(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—

(a)specifying the particular breach complained of; and

(b)if the breach is capable of remedy, requiring the lessee to remedy the breach; and

(c)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)A lessor shall be entitled to recover as a debt due to him from a lessee, and in addition to damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this Act.

(4)Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, or for non-payment of rent, the court may, on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor’s action (if any) or in any action brought by such person for that purpose, make an order vesting, for the whole term of the lease or any less term, the property comprised in the lease or any part thereof in any person entitled as under-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the court in the circumstances of each case may think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease.

(5)For the purposes of this section—

(a)Lease” includes an original or derivative under-lease; also an agreement for a lease where the lessee has become entitled to have his lease granted; also a grant at a fee farm rent, or securing a rent by condition;

(b)Lessee” includes an original or derivative under-lessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him;

(c)Lessor” includes an original or derivative under-lessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him;

(d)Under-lease” includes an agreement for an under-lease where the under-lessee has become entitled to have his underlease granted;

(e)Under-lessee” includes any person deriving title under an under-lessee.

(6)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 of Parliament.

(7)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.

(8)This section does not extend—

(i)To a covenant or condition against assigning, underletting, parting with the possession, or disposing of the land leased where the breach occurred before the commencement of this Act; or

(ii)In the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof.

(9)This section does not apply to a condition for forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee’s interest if contained in a lease of—

(a)Agricultural or pastoral land;

(b)Mines or minerals

(c)A house used or intended to be used as a public-house or beershop;

(d)A house let as a dwelling-house, with the use of any furniture, books, works of art, or other chattels not being in the nature of fixtures;

(e)Any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of the property, or on the ground of neighbourhood to the lessor, or to any person holding under him.

(10)Where a condition of forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee’s interest is contained in any lease, other than a lease of any of the classes mentioned in the last sub-section, then—

(a)if the lessee’s interest is sold within one year from the bankruptcy or taking in execution, this section applies to the forfeiture condition aforesaid;

(b)if the lessee’s interest is not sold before the expiration of that year, this section only applies to the forfeiture condition aforesaid during the first year from the date of the bankruptcy or taking in execution.

(11)This section does not, save as otherwise mentioned, affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

(12)This section has effect notwithstanding any stipulation to the contrary.

[F162(13)The county court has jurisdiction under this section—

F163(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F163(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

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Amendments (Textual)

F163S. 146(13)(a)(b) omitted (1.7.1991) by virtue of S.I. 1991/724, art. 2(8), Sch. Pt. I (with art. 12)

Modifications etc. (not altering text)

C101S. 146 excluded (3.11.1994) by 1994 c. 33, s. 7(3)(b); s. 146 excluded (3.11.1994) by 1991 c. 53, s. 84(3)(b) (as substituted (3.11.1994) by 1994 c. 33, s.96); s. 146 excluded (1.8.2000) by 1999 c. 33, s. 149(3)(b); S.I. 2000/1985, art. 2, Sch.

C104S. 146(7) applied (28.2.2005 for E. and 31.5.2005 for W.) by Commonhold and Leasehold Reform Act 2002 (c. 15), ss. 169(6), 181(1); S.I. 2004/3056, art. 3(f) (subject to art. 4 (as amended by S.I. 2005/193, art. 2)); S.I. 2005/1353, art. 2(f) (subject to art. 3)

147 Relief against notice to effect decorative repairs.E+W

(1)After a notice is served on a lessee relating to the internal decorative repairs to a house or other building, he may apply to the court for relief, and if, having regard to all the circumstances of the case (including in particular the length of the lessee’s term or interest remaining unexpired), the court is satisfied that the notice is unreasonable, it may, by order, wholly or partially relieve the lessee from liability for such repairs.

(2)This section does not apply:—

(i)where the liability arises under an express covenant or agreement to put the property in a decorative state of repair and the covenant or agreement has never been performed;

(ii)to any matter necessary or proper—

(a)for putting or keeping the property in a sanitary condition, or

(b)for the maintenance or preservation of the structure;

(iii)to any statutory liability to keep a house in all respects reasonably fit for human habitation;

(iv)to any covenant or stipulation to yield up the house or other building in a specified state of repair at the end of the term.

(3)In this section “lease” includes an underlease and an agreement for a lease, and “lessee” has a corresponding meaning and includes any person liable to effect the repairs.

(4)This section applies whether the notice is served before or after the commencement of this Act, and has effect notwithstanding any stipulation to the contrary.

[F164(5)The county court has jurisdiction under this section F165 . . .]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F165Words in s. 147(5) omitted (1.7.1991) by virtue of S.I. 1991/724, Sch. Pt.I (with art. 12)

Modifications etc. (not altering text)

C107S. 147 extended (1.7.1991) by S.I. 1991/724, art. 2(1)(a) (with art. 12)

148 Waiver of a covenant in a lease.E+W

(1)Where any actual waiver by a lessor or the persons deriving title under him of the benefit of any covenant or condition in any lease is proved to have taken place in any particular instance, such waiver shall not be deemed to extend to any instance, or to any breach of covenant or condition save that to which such waiver specially relates, nor operate as a general waiver of the benefit of any such covenant or condition.

(2)This section applies unless a contrary intention appears and extends to waivers effected after the twenty-third day of July, eighteen hundred and sixty.

149 Abolition of interesse termini, and as to reversionary leases and leases for lives.E+W

(1)The doctrine of interesse termini is hereby abolished.

(2)As from the commencement of this Act all terms of years absolute shall, whether the interest is created before or after such commencement, be capable of taking effect at law or in equity, according to the estate interest or powers of the grantor, from the date fixed for commencement of the term, without actual entry.

(3)A term, at a rent or granted in consideration of a fine, limited after the commencement of this Act to take effect more than twenty-one years from the date of the instrument purporting to create it, shall be void, and any contract made after such commencement to create such a term shall likewise be void; but this subsection does not apply to any term taking effect in equity under a settlement, or created out of an equitable interest under a settlement, or under an equitable power for mortgage, indemnity or other like purposes.

(4)Nothing in subsections (1) and (2) of this section prejudicially affects the right of any person to recover any rent or to enforce or take advantage of any covenants or conditions, or, as respects terms or interests created before the commencement of this Act, operates to vary any statutory or other obligations imposed in respect of such terms or interests.

(5)Nothing in this Act affects the rule of law that a legal term, whether or not being a mortgage term, may be created to take effect in reversion expectant on a longer term, which rule is hereby confirmed.

(6)Any lease or underlease, at a rent, or in consideration of a fine, for life or lives or for any term of years determinable with life or lives, or on the marriage of the lessee, [F166or on the formation of a civil partnership between the lessee and another person,]F166 or any contract therefor, made before or after the commencement of this Act, or created by virtue of Part V. of the M17Law of Property Act, 1922, shall take effect as a lease, underlease or contract therefor, for a term of ninety years determinable [F167after (as the case may be) the death or marriage of, or the formation of a civil partnership by, the original lessee or the survivor of the original lessees,]F167 by at least one month’s notice in writing given to determine the same on one of the quarter days applicable to the tenancy, either by the lessor or the persons deriving title under him, to the person entitled to the leasehold interest, or if no such person is in existence by affixing the same to the premises, or by the lessee or other persons in whom the leasehold interest is vested to the lessor or the persons deriving title under him:

Provided that—

(a)this subsection shall not apply to any term taking effect in equity under a settlement or created out of an equitable interest under a settlement for mortgage, indemnity, or other like purposes;

(b)the person in whom the leasehold interest is vested by virtue of Part V. of the Law of Property Act, 1922, shall, for the purposes of this subsection, be deemed an original lessee;

(c)if the lease, underlease, or contract therefor is made determinable on the dropping of the lives of persons other than or besides the lessees, then the notice shall be capable of being served after the death of any person or of the survivor of any persons (whether or not including the lessees) on the cesser of whose life or lives the lease, underlease, or contract is made determinable, instead of after the death of the original lessee or of the survivor of the original lessees;

(d)if there are no quarter days specially applicable to the tenancy, notice may be given to determine the tenancy on one of the usual quarter days.

[F168(7)Subsection (8) applies where a lease, underlease or contract—

(a)relates to commonhold land, and

(b)would take effect by virtue of subsection (6) as a lease, underlease or contract of the kind mentioned in that subsection.

(8)The lease, underlease or contract shall be treated as if it purported to be a lease, underlease or contract of the kind referred to in subsection (7)(b)(and sections 17 and 18 of the Commonhold and Leasehold Reform Act 2002 (residential and non-residential leases) shall apply accordingly).F168]

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Amendments (Textual)

F166Words in s. 149(6) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 81, Sch. 8 para. 1(2); S.I. 2005/3175 {art. 2(1)}, Sch. 1

Marginal Citations

150 Surrender of a lease, without prejudice to underleases with a view to the grant of a new lease.E+W

(1)A lease may be surrendered with a view to the acceptance of a new lease in place thereof, without a surrender of any under-lease derived thereout.

(2)A new lease may be granted and accepted, in place of any lease so surrendered, without any such surrender of an under-lease as aforesaid, and the new lease operates as if all under-leases derived out of the surrendered lease had been surrendered before the surrender of that lease was effected.

(3)The lessee under the new lease and any person deriving title under him is entitled to the same rights and remedies in respect of the rent reserved by and the covenants, agreements and conditions contained in any under-lease as if the original lease had not been surrendered but was or remained vested in him.

(4)Each under-lessee and any person deriving title under him is entitled to hold and enjoy the land comprised in his under-lease (subject to the payment of any rent reserved by and to the observance of the covenants agreements and conditions contained in the under-lease) as if the lease out of which the under-lease was derived had not been surrendered.

(5)The lessor granting the new lease and any person deriving title under him is entitled to the same remedies, by distress or entry in and upon the land comprised in any such under-lease for rent reserved by or for breach of any covenant, agreement or condition contained in the new lease (so far only as the rents reserved by or the covenants, agreements or conditions contained in the new lease do not exceed or impose greater burdens than those reserved by or contained in the original lease out of which the under-lease is derived) as he would have had—

(a)If the original lease had remained on foot; or

(b)If a new under-lease derived out of the new lease had been granted to the under-lessee or a person deriving title under him;

as the case may require.

(6)This section does not affect the powers of the court to give relief against forfeiture.

151 Provision as to attornments by tenants.E+W

(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 rentcharge to issue or issuing out of the land;

shall be valid without any attornment of the lessee:

Nothing in this subsection—

(i)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

(ii)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.

(2)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, shall be void.

This subsection does not apply to an attornment—

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

(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 other person rightfully deriving title under the lessor.

152 Leases invalidated by reason of non-compliance with terms of powers under which they are granted.E+W

(1)Where in the intended exercise of any power of leasing, whether conferred by an Act of Parliament or any other instrument, a lease (in this section referred to as an invalid lease) is granted, which by reason of any failure to comply with the terms of the power is invalid, then—

(a)as against the person entitled after the determination of the interest of the grantor to the reversion; or

(b)as against any other person who, subject to any lease properly granted under the power, would have been entitled to the land comprised in the lease;

the lease, if it was made in good faith, and the lessee has entered, thereunder, shall take effect in equity as a contract for the grant, at the request of the lessee, of a valid lease under the power, of like effect as the invalid lease, subject to such variations as may be necessary in order to comply with the terms of the power:

Provided that a lessee under an invalid lease shall not, by virtue of any such implied contract, be entitled to obtain a variation of the lease if the other persons who would have been bound by the contract are willing and able to confirm the lease without variation.

(2)Where a lease granted in the intended exercise of such a power is invalid by reason of the grantor not having power to grant the lease at the date thereof, but the grantor’s interest in the land comprised therein continues after the time when he might, in the exercise of the power, have properly granted a lease in the like terms, the lease shall take effect as a valid lease in like manner as if it had been granted at that time.

(3)Where during the continuance of the possession taken under an invalid lease the person for the time being entitled, subject to such possession, to the land comprised therein or to the rents and profits thereof, is able to confirm the lease without variation, the lessee, or other person who would have been bound by the lease had it been valid, shall, at the request of the person so able to confirm the lease, be bound to accept a confirmation thereof, and thereupon the lease shall have effect and be deemed to have had effect as a valid lease from the grant thereof.

Confirmation under this subsection may be by a memorandum in writing signed by or on behalf of the persons respectively confirming and accepting the confirmation of the lease.

(4)Where a receipt or a memorandum in writing confirming an invalid lease is, upon or before the acceptance of rent thereunder, signed by or on behalf of the person accepting the rent, that acceptance shall, as against that person, be deemed to be a confirmation of the lease.

(5)The foregoing provisions of this section do not affect prejudicially—

(a)any right of action or other right or remedy to which, but for those provisions or any enactment replaced by those provisions, the lessee named in an invalid lease would or might have been entitled under any covenant on the part of the grantor for title or quiet enjoyment contained therein or implied thereby; or

(b)any right of re-entry or other right or remedy to which, but for those provisions or any enactment replaced thereby, the grantor or other person for the time being entitled to the reversion expectant on the termination of the lease, would or might have been entitled by reason of any breach of the covenants, conditions or provisions contained in the lease and binding on the lessee.

(6)Where a valid power of leasing is vested in or may be exercised by a person who grants a lease which, by reason of the determination of the interest of the grantor or otherwise, cannot have effect and continuance according to the terms thereof independently of the power, the lease shall for the purposes of this section be deemed to have been granted in the intended exercise of the power although the power is not referred to in the lease.

(7)This section does not apply to a lease of land held on charitable, ecclesiastical or public trusts.

(8)This section takes effect without prejudice to the provision in this Act for the grant of leases in the name and on behalf of the estate owner of the land affected.

153 Enlargement of residue of long terms into fee simple estates.E+W

(1)Where a residue unexpired of not less than two hundred years of a term, which, as originally created, was for not less than three hundred years, is subsisting in land, whether being the whole land originally comprised in the term, or part only thereof,—

(a)without any trust or right of redemption affecting the term in favour of the freeholder, or other person entitled in reversion expectant on the term; and

(b)without any rent, or with merely a peppercorn rent or other rent having no money value, incident to the reversion, or having had a rent, not being merely a peppercorn rent or other rent having no money value, originally so incident, which subsequently has been released or has become barred by lapse of time, or has in any other way ceased to be payable;

the term may be enlarged into a fee simple in the manner, and subject to the restrictions in this section provided.

(2)This section applies to and includes every such term as aforesaid whenever created, whether or not having the freehold as the immediate reversion thereon; but does not apply to—

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

(ii)Any term created by subdemise out of a superior term, itself incapable of being enlarged into fee simple.

(3)This section extends to mortgage terms, where the right of redemption is barred.

(4)A rent not exceeding the yearly sum of one pound which has not been collected or paid for a continuous period of twenty years or upwards shall, for the purposes of this section, be deemed to have ceased to be payable:

F169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Where a rent incident to a reversion expectant on a term to which this section applies is deemed to have ceased to be payable for the purposes aforesaid, no claim for such rent or for any arrears thereof shall be capable of being enforced.

(6)Each of the following persons, namely—

(i)Any person beneficially entitled in right of the term, whether subject to any incumbrance or not, to possession of any land comprised in the term, and, in the case of a married woman without the concurrence of her husband, whether or not she is entitled for her separate use or as her separate property, F170. . . ;

(ii)Any person being in receipt of income as trustee, in right of the term, or having the term vested in him [F171as a trustee of land], whether subject to any incumbrance or not;

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

shall, so far as regards the land to which he is entitled, or in which he is interested in right of the term, in any such character as aforesaid, have power by deed to declare to the effect that, from and after the execution of the deed, the term shall be enlarged into a fee simple.

(7)Thereupon, by virtue of the deed and of this Act, the term shall become and be enlarged accordingly, and the person in whom the term was previously vested shall acquire and have in the land a fee simple instead of the term.

(8)The estate in fee simple so acquired by enlargement shall be subject to all the same trusts, powers, executory limitations over, rights, and equities, and to all the same covenants and provisions relating to user and enjoyment, and to all the same obligations of every kind, as the term would have been subject to if it had not been so enlarged.

(9)But where—

(a)any land so held for the residue of a term has been settled in trust by reference to other land, being freehold land, so as to go along with that other land, or, in the case of settlements coming into operation before the commencement of this Act, so as to go along with that other land as far as the law permits; and

(b)at the time of enlargement, the ultimate beneficial interest in the term, whether subject to any subsisting particular estate or not, has not become absolutely and indefeasibly vested in any person, free from charges or powers of charging created by a settlement;

the estate in fee simple acquired as aforesaid shall, without prejudice to any conveyance for value previously made by a person having a contingent or defeasible interest in the term, be liable to be, and shall be, conveyed by means of a subsidiary vesting instrument and settled in like manner as the other land, being freehold land, aforesaid, and until so conveyed and settled shall devolve beneficially as if it had been so conveyed and settled.

(10)The estate in fee simple so acquired shall, whether the term was originally created without impeachment of waste or not, include the fee simple in all mines and minerals which at the time of enlargement have not been severed in right or in fact, or have not been severed or reserved by an inclosure Act or award.

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Amendments (Textual)

Modifications etc. (not altering text)

154 Application of Part V. to existing leases. E+W

This Part of this Act, except where otherwise expressly provided, applies to leases created before or after the commencement of this Act, and “lease” includes an under-lease or other tenancy.

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Modifications etc. (not altering text)

Part VI E+W Powers

155 Release of powers simply collateral.E+W

A person to whom any power, whether coupled with an interest or not, is given may by deed release, or contract not to exercise, the power.

156 Disclaimer of power.E+W

(1)A person to whom any power, whether coupled with an interest or not, is given may by deed disclaim the power, and, after disclaimer, shall not be capable of exercising or joining in the exercise of the power.

(2)On such disclaimer, the power may be exercised by the other person or persons or the survivor or survivors of the other persons, to whom the power is given, unless the contrary is expressed in the instrument creating the power.

157 Protection of purchasers claiming under certain void appointments.E+W

(1)An instrument purporting to exercise a power of appointment over property, which, in default of and subject to any appointment, is held in trust for a class or number of persons of whom the appointee is one, shall not (save as hereinafter provided) be void on the ground of fraud on the power as against a purchaser in good faith:

Provided that, if the interest appointed exceeds, in amount or value, the interest in such property to which immediately before the execution of the instrument the appointee was presumptively entitled under the trust in default of appointment, having regard to any advances made in his favour and to any hotchpot provision, the protection afforded by this section to a purchaser shall not extend to such excess.

(2)In this section “a purchaser in good faith” means a person dealing with an appointee of the age of not less than twenty-five years for valuable consideration in money or money’s worth, and without notice of the fraud, or of any circumstances from which, if reasonable inquiries had been made, the fraud might have been discovered.

(3)Persons deriving title under any purchaser entitled to the benefit of this section shall be entitled to the like benefit.

(4)This section applies only to dealings effected after the commencement of this Act.

158 Validation of appointments where objects are excluded or take illusory shares.E+W

(1)No appointment made in exercise of any power to appoint any property among two or more objects shall be invalid on the ground that—

(a)an unsubstantial, illusory, or nominal share only is appointed to or left unappointed to devolve upon any one or more of the objects of the power; or

(b)any object of the power is thereby altogether excluded;

but every such appointment shall be valid notwithstanding that any one or more of the objects is not thereby, or in default of appointment, to take any share in the property.

(2)This section does not affect any provision in the instrument creating the power which declares the amount of any share from which any object of the power is not to be excluded.

(3)This section applies to appointments made before or after the commencement of this Act.

159 Execution of powers not testamentary.E+W

(1)A deed executed in the presence of and attested by two or more witnesses (in the manner in which deeds are ordinarily executed and attested) is so far as respects the execution and attestation thereof, a valid execution of a power of appointment by deed or by any instrument in writing, not testamentary, notwithstanding that it is expressly required that a deed or instrument in writing, made in exercise of the power, is to be executed or attested with some additional or other form of execution or attestation or solemnity.

(2)This section does not operate to defeat any direction in the instrument creating the power that—

(a)the consent of any particular person is to be necessary to a valid execution;

(b)in order to give validity to any appointment, any act is to be performed having no relation to the mode of executing and attesting the instrument.

(3)This section does not prevent the donee of a power from executing it in accordance with the power by writing, or otherwise than by an instrument executed and attested as a deed; and where a power is so executed this section does not apply.

(4)This section applies to appointments by deed made after the thirteenth day of August, eighteen hundred and fifty-nine.

160 Application of Part VI. to existing powers.E+W

This Part of this Act applies to powers created or arising either before or after the commencement of this Act.

Part VII E+W Perpetuities and Accumulations

PerpetuitiesE+W

161 Abolition of the double possibility rule.E+W

(1)The rule of law prohibiting the limitation, after a life interest to an unborn person, of an interest in land to the unborn child or other issue of an unborn person is hereby abolished, but without prejudice to any other rule relating to perpetuities.

(2)This section only applies to limitations or trusts created by an instrument coming into operation after the commencement of this Act.

162 Restrictions on the perpetuity rule.E+W

(1)For removing doubts, it is hereby declared that the rule of law relating to perpetuities does not apply and shall be deemed never to have applied—

(a)To any power to distrain on or to take possession of land or the income thereof given by way of indemnity against a rent, whether charged upon or payable in respect of any part of that land or not; or

(b)To any rentcharge created only as an indemnity against another rentcharge, although the indemnity rentcharge may only arise or become payable on breach of a condition or stipulation; or

(c)To any power, whether exercisable on breach of a condition or stipulation or not, to retain or withhold payment of any instalment of a rentcharge as an indemnity against another rentcharge; or

(d)To any grant, exception, or reservation of any right of entry on, or user of, the surface of land or of any easements, rights, or privileges over or under land for the purpose of—

(i)winning, working, inspecting, measuring, converting, manufacturing, carrying away, and disposing of mines and minerals;

(ii)inspecting, grubbing up, felling and carrying away timber and other trees, and the tops and lops thereof;

(iii)executing repairs, alterations, or additions to any adjoining land, or the buildings and erections thereon;

(iv)constructing, laying down, altering, repairing, renewing, cleansing, and maintaining sewers, watercourses, cesspools, gutters, drains, water-pipes, gas-pipes, electric wires or cables or other like works.

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

163. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F172E+W

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Amendments (Textual)

AccumulationsE+W

164 General restrictions on accumulation of income. E+W

(1)No person may by any instrument or otherwise settle or dispose of any property in such manner that the income thereof shall, save as hereinafter mentioned, be wholly or partially accumulated for any longer period than one of the following, namely:—

(a)the life of the grantor or settlor; or

(b)a term of twenty-one years from the death of the grantor, settlor or testator; or

(c)the duration of the minority or respective minorities of any person or persons living or en ventre sa mere at the death of the grantor, settlor or testator; or

(d)the duration of the minority or respective minorities only of any person or persons who under the limitations of the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed to be accumulated.

In every case where any accumulation is directed otherwise than as aforesaid, the direction shall (save as hereinafter mentioned) be void; and the income of the property directed to be accumulated shall, so long as the same is directed to be accumulated contrary to this section, go to and be received by the person or persons who would have been entitled thereto if such accumulation had not been directed.

(2)This section does not extend to any provision—

(i)for payment of the debts of any grantor, settlor, testator or other person;

(ii)for raising portions for—

(a)any child, children or remoter issue of any grantor, settlor or testator; or

(b)any child, children or remoter issue of a person taking any interest under any settlement or other disposition directing the accumulations or to whom any interest is thereby limited;

(iii)respecting the accumulation of the produce of timber or wood;

and accordingly such provisions may be made as if no statutory restrictions on accumulation of income had been imposed.

(3)The restrictions imposed by this section apply to instruments made on or after the twenty-eighth day of July, eighteen hundred, but in the case of wills only where the testator was living and of testamentary capacity after the end of one year from that date.

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Modifications etc. (not altering text)

165 Qualification of restrictions on accumulation.E+W

Where accumulations of surplus income are made during a minority under any statutory power or under the general law, the period for which such accumulations are made is not (whether the trust was created or the accumulations were made before or after the commencement of this Act) to be taken into account in determining the periods for which accumulations are permitted to be made by the last preceding section, and accordingly an express trust for accumulation for any other permitted period shall not be deemed to have been invalidated or become invalid, by reason of accumulations also having been made as aforesaid during such minority.

166 Restriction on accumulation for the purchase of land.E+W

(1)No person may settle or dispose of any property in such manner that the income thereof shall be wholly or partially accumulated for the purchase of land only, for any longer period than the duration of the minority or respective minorities of any person or persons who, under the limitations of the instrument directing the accumulation, would for the time being, if of full age, be entitled to the income so directed to be accumulated.

(2)This section does not, nor do the enactments which it replaces, apply to accumulations to be held as capital money for the purposes of the M18Settled Land Act, 1925, or the enactments replaced by that Act, whether or not the accumulations are primarily liable to be laid out in the purchase of land.

(3)This section applies to settlements and dispositions made after the twenty-seventh day of June eighteen hundred and ninety-two.

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Marginal Citations

Part VIII E+W Married Women and Lunatics

167–170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F173E+W

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Amendments (Textual)

171. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F174E+W

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Amendments (Textual)

Part IX E+W Voidable Dispositions

172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F175E+W

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Amendments (Textual)

173 Voluntary disposition of land how far voidable as against purchasers.E+W

(1)Every voluntary disposition of land made with intent to defraud a subsequent purchaser is voidable at the instance of that purchaser.

(2)For the purposes of this section, no voluntary disposition, whenever made, shall be deemed to have been made with intent to defraud by reason only that a subsequent conveyance for valuable consideration was made, if such subsequent conveyance was made after the twenty-eighth day of June, eighteen hundred and ninety-three.

174 Acquisitions of reversions at an under value.E+W

(1)No acquisition made in good faith, without fraud or unfair dealing, of any reversionary interest in real or personal property, for money or money’s worth, shall be liable to be opened or set aside merely on the ground of under value.

In this subsection “reversionary interest” includes an expectancy or possibility.

(2)This section does not affect the jurisdiction of the court to set aside or modify unconscionable bargains.

Part X E+W Wills

175 Contingent and future testamentary gifts to carry the intermediate income.E+W

(1)A contingent or future specific devise or bequest of property, whether real or personal, and a contingent residuary devise of freehold land, and a specific or residuary devise of freehold land to trustees upon trust for persons whose interests are contingent or executory shall, subject to the statutory provisions relating to accumulations, carry the intermediate income of that property from the death of the testator, except so far as such income, or any part thereof, may be otherwise expressly disposed of.

(2)This section applies only to wills coming into operation after the commencement of this Act.

176 Power for tenant in tail in possession to dispose of property by specific devise or bequest.E+W

(1)A tenant in tail of full age shall have power to dispose by will, by means of a devise or bequest referring specifically either to the property or to the instrument under which it was acquired or to entailed property generally—

(a)of all property of which he is tenant in tail in possession at his death; and

(b)of money (including the proceeds of property directed to be sold) subject to be invested in the purchase of property, of which if it had been so invested he would have been tenant in tail in possession at his death;

in like manner as if, after barring the entail, he had been tenant in fee-simple or absolute owner thereof for an equitable interest at his death, but, subject to and in default of any such disposition by will, such property shall devolve in the same manner as if this section had not been passed.

(2)This section applies to entailed interests authorised to be created by this Act as well as to estates tail created before the commencement of this Act, but does not extend to a tenant in tail who is by statute restrained from barring or defeating his estate tail, whether the land or property in respect whereof he is so restrained was purchased with money provided by Parliament in consideration of public services or not, or to a tenant in tail after possibility of issue extinct, and does not render any interest which is not disposed of by the will of the tenant in tail liable for his debts or other liabilities.

(3)In this section “tenant in tail” includes an owner of a base fee in possession who has power to enlarge the base fee into a fee-simple without the concurrence of any other person.

(4)This section only applies to wills executed after the commencement of this Act, or confirmed or republished by codicil executed after such commencement.

177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F176E+W

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Amendments (Textual)

178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F177E+W

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Amendments (Textual)

179 Prescribed forms for reference in wills.E+W

The Lord Chancellor may from time to time prescribe and publish forms to which a testator may refer in his will, and give directions as to the manner in which they may be referred to, but, unless so referred to, such forms shall not be deemed to be incorporated in a will.

Part XI E+W Miscellaneous

MiscellaneousE+W

180 Provisions as to corporations.E+W

(1)Where either after or before the commencement of this Act any property or any interest therein is or has been vested in a corporation sole (including the Crown), the same shall, unless and until otherwise disposed of by the corporation, pass and devolve to and vest in and be deemed always to have passed and devolved to or vested in the successors from time to time of such corporation.

(2)Where either after or before the commencement of this Act there is or has been a vacancy in the office of a corporation sole or in the office of the head of a corporation aggregate (in any case in which the vacancy affects the status or powers of the corporation) at the time when, if there had been no vacancy, any interest in or charge on property would have been acquired by the corporation, such interest shall notwithstanding such vacancy vest and be deemed to have vested in the successor to such office on his appointment as a corporation sole, or in the corporation aggregate (as the case may be), but without prejudice to the right of such successor, or of the corporation aggregate after the appointment of its head officer, to disclaim that interest or charge.

(3)Any contract or other transaction expressed or purported to be made with a corporation sole, or any appointment of a corporation sole as a custodian or other trustee or as a personal representative, at a time (either after or before the commencement of this Act) when there was a vacancy in the office, shall on the vacancy being filled take effect and be deemed to have taken effect as if the vacancy had been filled before the contract, transaction or appointment was expressed to be made or was capable of taking effect, and on the appointment of a successor shall be capable of being enforced, accepted, disclaimed or renounced by him.

181 Dissolution of a corporation. E+W

[F178(1)]Where, by reason of the dissolution of a corporation either before or after the commencement of this Act, a legal estate in any property has determined, the court may by order create a corresponding estate and vest the same in the person who would have been entitled to the estate which determined had it remained a subsisting estate.

[F179(2)The county court has jurisdiction under this section where the amount or value of the property or of the interest in the property which is to be dealt with in the court does not exceed [F180£30,000]]

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Amendments (Textual)

F180Words in s. 181(2) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)

Modifications etc. (not altering text)

C114S. 181 extended (1.7.1991) by S.I. 1991/724, art. 2(3)(a) (with art. 12)

182 Protection of solicitor and trustees adopting Act. E+W

(1)The powers given by this Act to any person, and the covenants, provisions, stipulations, and words which under this Act are to be deemed to be included or implied in any instrument, or are by this Act made applicable to any contract for sale or other transaction, are and shall be deemed in law proper powers, covenants, provisions, stipulations, and words, to be given by or to be contained in any such instrument, or to be adopted in connexion with, or applied to, any such contract or transaction, and a solicitor shall not be deemed guilty of neglect or breach of duty, or become in any way liable, by reason of his omitting, in good faith, in any such instrument, or in connexion with any such contract or transaction, to negative the giving, inclusion, implication, or application of any of those powers, covenants, provisions, stipulations, or words, or to insert or apply any others in place thereof, in any case where the provisions of this Act would allow of his doing so.

(2)But, save as expressly provided by this Act, nothing in this Act shall be taken to imply that the insertion in any such instrument, or the adoption in connexion with, or the application to, any contract or transaction, of any further or other powers, covenants, provisions, stipulations, or words is improper.

(3)Where the solicitor is acting for trustees, executors, or other persons in a fiduciary position, those persons shall also be protected in like manner.

(4)Where such persons are acting without a solicitor, they shall also be protected in like manner.

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Modifications etc. (not altering text)

C117S. 182 extended (prosp.) by Building Societies Act 1986 (c. 53, SIF 16), ss. 54(3)(a)(5), 119(5), 124, 126, Sch. 21 paras. 9(a), 12(2)(3) (the said s. 124 (which induces Sch. 21) being repealed (prosp.) by Courts and Legal Services Act 1990 (c. 41, SIF 76:1), s. 125(7), Sch. 20)

183 Fraudulent concealment of documents and falsification of pedigrees.E+W

(1)Any person disposing of property or any interest therein for money or money’s worth to a purchaser, or the solicitor or other agent of such person, who—

(a)conceals from the purchaser any instrument or incumbrance material to the title; or

(b)falsifies any pedigree upon which the title may depend in order to induce the purchaser to accept the title offered or produced;

with intent in any of such cases to defraud, is guilty of a misdemeanour punishable by fine, or by imprisonment for a term not exceeding two years, or by both.

(2)Any such person or his solicitor or agent is also liable to an action for damages by the purchaser or the persons deriving title under him for any loss sustained by reason of—

(a)the concealment of the instrument or incumbrance; or

(b)any claim made by a person under such pedigree whose right was concealed by such falsification as aforesaid.

(3)In estimating damages, where the property or any interest therein is recovered from the purchaser or the persons deriving title under him, regard shall be had to any expenditure by him or them in improvements of any land.

(4)No prosecution for any offence under this section shall be commenced without the leave of the Attorney-General.

(5)Before leave to prosecute is granted there shall be given to the person intended to be prosecuted such notice of the application for leave to prosecute as the Attorney-General may direct.

184 Presumption of survivorship in regard to claims to property. E+W

In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

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Modifications etc. (not altering text)

185 Merger.E+W

There is no 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.

186 Rights of pre-emption capable of release.E+W

All statutory and other rights of pre-emption affecting a legal estate shall be and be deemed always to have been capable of release, and unless released shall remain in force as equitable interests only.

187 Legal easements.E+W

(1)Where an easement, right or privilege for a legal estate is created, it shall enure for the benefit of the land to which it is intended to be annexed.

(2)Nothing in this Act affects the right of a person to acquire, hold or exercise an easement, right or privilege over or in relation to land for a legal estate in common with any other person, or the power of creating or conveying such an easement right or privilege.

188 Power to direct division of chattels. E+W

[F181(1)]Where any chattels belong to persons in undivided shares, the persons interested in a moiety or upwards may apply to the court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the court may make such order and give any consequential directions as it thinks fit.

[F182(2)The county court has jurisdiction under this section where the amount or value of the property or of the interest in the property which is to be dealt with in the court does not exceed [F183£30,000].]

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Amendments (Textual)

F183Words in s. 188(2) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I

Modifications etc. (not altering text)

C120S. 188 extended (1.7.1991) by S.I. 1991/724, art. 2(3)(a)

189 Indemnities against rents.E+W

(1)A power of distress given by way of indemnity against a rent or any part thereof payable in respect of any land, or against the breach of any covenant or condition in relation to land, is not and shall not be deemed ever to have been a bill of sale within the meaning of the M19Bills of Sale Acts, 1878 and M201882, as amended by any subsequent enactment.

(2)The benefit of all covenants and powers given by way of indemnity against a rent or any part thereof payable in respect of land, or against the breach of any covenant or condition in relation to land, is and shall be deemed always to have been annexed to the land to which the indemnity is intended to relate, and may be enforced by the estate owner for the time being of the whole or any part of that land, notwithstanding that the benefit may not have been expressly apportioned or assigned to him or to any of his predecessors in title.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Redemption and Apportionment of Rents, &c.E+W

190 Equitable apportionment of rents and remedies for non-payment or breach of covenant.E+W

(1)Where in a conveyance for valuable consideration, other than a mortgage, of part of land which is affected by a rentcharge, such rentcharge or a part thereof is, without the consent of the owner thereof, expressed to be—

(a)charged exclusively on the land conveyed or any part thereof in exoneration of the land retained or other land; or

(b)charged exclusively on the land retained or any part thereof in exoneration of the land conveyed or other land; or

(c)apportioned between the land conveyed or any part thereof, and the land retained by the grantor or any part thereof;

then, without prejudice to the rights of the owner of the rentcharge, such charge or apportionment shall be binding as between the grantor and the grantee under the conveyance and their respective successors in title.

(2)Where—

(a)any default is made in payment of the whole or part of a rentcharge by the person who, by reason of such charge or apportionment as aforesaid, is liable to pay the same; or

(b)any breach occurs of any of the covenants (other than in the case of an apportionment the covenant to pay the entire rentcharge) or conditions contained in the deed or other document creating the rentcharge, so far as the same relate to the land retained or conveyed, as the case may be;

the owner for the time being of any other land affected by the entire rentcharge who—

(i)pays or is required to pay the whole or part of the rentcharge which ought to have been paid by the defaulter aforesaid; or

(ii)incurs any costs, damages or expenses by reason of the breach of covenant or condition aforesaid;

may enter into and distrain on the land in respect of which the default or breach is made or occurs, or any part of that land, and dispose according to law of any distress found, and may also take possession of the income of the same land until, by means of such distress and receipt of income or otherwise the whole or part of the rentcharge (charged or apportioned as aforesaid) so unpaid and all costs, damages and expenses incurred by reason of the non-payment thereof or of the breach of the said covenants and conditions, are fully paid or satisfied.

(3)Where in a conveyance for valuable consideration, other than a mortgage, of part of land comprised in a lease, for the residue of the term or interest created by the lease, the rent reserved by such lease or a part thereof is, without the consent of the lessor, expressed to be—

(a)charged exclusively on the land conveyed or any part thereof in exoneration of the land retained by the assignor or other land; or

(b)charged exclusively on the land retained by the assignor or any part thereof in exoneration of the land conveyed or other land; or

(c)apportioned between the land conveyed or any part thereof and the land retained by the assignor or any part thereof;

then, without prejudice to the rights of the lessor, such charge or apportionment shall be binding as between the assignor and the assignee under the conveyance and their respective successors in title.

(4)Where—

(a)any default is made in payment of the whole or part of a rent by the person who, by reason of such charge or apportionment as aforesaid, is liable to pay the same; or

(b)any breach occurs of any of the lessee’s covenants (other than in the case of an apportionment the covenant to pay the entire rent) or conditions contained in the lease, so far as the same relate to the land retained or conveyed, as the case may be;

the lessee for the time being of any other land comprised in the lease, in whom, as respects that land, the residue of the term or interest created by the lease is vested, who—

(i)pays or is required to pay the whole or part of the rent which ought to have been paid by the defaulter aforesaid; or

(ii)incurs any costs, damages or expenses by reason of the breach of covenant or condition aforesaid;

may enter into and distrain on the land comprised in the lease in respect of which the default or breach is made or occurs, or any part of that land, and dispose according to law of any distress found, and may also take possession of the income of the same land until (so long as the term or interest created by the lease is subsisting) by means of such distress and receipt of income or otherwise, the whole or part of the rent (charged or apportioned as aforesaid) so unpaid and all costs, damages and expenses incurred by reason of the non-payment thereof or of the breach of the said covenants and conditions, are fully paid or satisfied.

(5)The remedies conferred by this section take effect so far only as they might have been conferred by the conveyance whereby the rent or any part thereof is expressed to be charged or apportioned as aforesaid, but a trustee, personal representative, mortgagee or other person in a fiduciary position has, and shall be deemed always to have had, power to confer the same or like remedies.

(6)This section applies only if and so far as a contrary intention is not expressed in the conveyance whereby the rent or any part thereof is expressed to be charged or apportioned as aforesaid, and takes effect subject to the terms of that conveyance and to the provisions therein contained.

(7)The remedies conferred by this section apply only where the conveyance whereby the rent or any part thereof is expressed to be charged or apportioned is made after the commencement of this Act, and do not apply where the rent is charged exclusively as aforesaid or legally apportioned with the consent of the owner or lessor.

(8)The rule of law relating to perpetuities does not affect the powers or remedies conferred by this section or any like powers or remedies expressly conferred, before or after the commencement of this Act, by an instrument.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

191. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F184E+W

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F184S. 191 repealed by Rentcharges Act 1977 (c. 30, SIF 98:1), s. 17(2), Sch. 2 (subject to a saving in s. 17(4) in relation to applications for apportionment or redemption made before 1.2.1978)

192 Apportionment of charges payable for redemption of tithe rentcharge. E+W

An order of apportionment of a charge on land by way of annuity for redemption of tithe rentcharge may be made by the Minister under sections ten to fourteen (inclusive) of the M21Inclosure Act, 1854, on the application of any person interested, according to the provisions of the Inclosure Acts, 1845 to 1882, in the land charged or any part thereof without the concurrence of any other person:

Provided that the Minister may, in any such case, on the application of any person interested in the annuity, require as a condition of making the order that any apportioned part of the annuity which does not exceed the yearly sum of two pounds shall be redeemed forthwith.

Annotations: Help about Annotation
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C122Functions of Minister of Agriculture and Fisheries as to certain annuities under s. 192 now exercisable by Commissioners of Inland Revenue: Tithe Act 1951 (c. 62), s. 10(4) and S.I. 1959/1971 (1959 II, p. 2618)

Marginal Citations

Commons and Waste LandsE+W

193 Rights of the public over commons and waste lands.E+W

(1)Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898, or manorial waste, or a common, which is wholly or partly situated within [F185an area which immediately before 1st April 1974 was] a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:

Provided that—

(a)such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and

(b)the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, [F186for conserving flora, fauna or geological or physiographical features of the land,] or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and

(c)such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and

(d)the rights of access shall cease to apply—

(i)to any land over which the commonable rights are extinguished under any statutory provision;

(ii)to any land over which the commonable rights are otherwise extinguished if the council of the county [F187, county borough][F188or metropolitan district]. . . in which the land is situated by resolution assent to its exclusion from the operation of this section, and the resolution is approved by the Minister.

[F189(2)The lord of the manor or other person entitled to the soil of any land subject to rights of common may by deed, revocable or irrevocable, declare that this section shall apply to the land, and upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies.]

(3)Where limitations or conditions are imposed by the Minister under this section, they shall be published by such person and in such manner as the Minister may direct.

(4)Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding [F190£20] for each offence.

(5)Nothing in this section shall prejudice or affect the right of any person to get and remove mines or