Land and Conveyancing Law Reform Act 2009

80.. Covenants for title.

80.— (1) In a conveyance of any class referred to in subsection (2) there are implied the covenants specified in relation to that class in Part 2 of Schedule 3, and those covenants are deemed to be made—

[CA 1881, s. 7]

(a) by the person or by each person who conveys, to the extent of the estate or interest or share of the estate or interest expressed to be conveyed by such person (“the subject-matter of the conveyance”),

(b) with the person to whom the conveyance is made, or with the persons jointly and severally, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common,

and have the effect specified in Parts 1 and 2 of Schedule 3.

(2) The classes of conveyance referred to in subsection (1) are—

(3) Where a conveyance is made by a person who is expressed to convey by direction of another person who is expressed to direct “as beneficial owner”, then, whether or not that other person is also expressed to convey “as beneficial owner”, the conveyance is for the purposes of this section a conveyance made by that other person expressed to convey “as beneficial owner” to the extent of the subject-matter of the conveyance made by that other person’s direction.

(4) Without prejudice to section 52(6) of the Act of 1965, where in a conveyance a person conveying is not expressed to convey “as beneficial owner”, “as trustee”, “as mortgagee”, “as personal representative”, under an order of the court or by a direction of a person “as beneficial owner”, no covenant on the part of the person conveying is implied in the conveyance.

(5) The benefit of a covenant implied under this section—

(a) is annexed to and passes with the estate or interest of the implied covenantee,

(b) is enforceable by every person, including a tenant, mortgagee and any other person deriving title from or under the implied covenantee, in whom that estate or interest, or any part of it, or an estate or interest derived out of it, is vested from time to time.

(6) A covenant implied under this section may, by the terms of the conveyance, be—

(a) excluded but not so that a sole covenant or all (as distinct from some only) of the covenants implied in relation to a person expressed to convey as specified in subsection (2) are excluded,

(b) modified and, if so modified, operates as if the modification was included in this section and Schedule 3.

(7) Any covenant implied under this section by reason of a person being expressed to convey “as beneficial owner” may, by express reference to this section, be incorporated, with or without modification, in a conveyance, whether or not for valuable consideration, by a person who is expressed to convey as specified in Class 5 of subsection (2).

81.. Additional covenants for land comprised in a lease.

81.— (1) In a conveyance of any class referred to in subsection (2)there are implied, in addition to the covenants referred to in section 80(1), the covenants specified in relation to that class in Part 3 of Schedule 3, and those covenants are deemed to be made—

(a) by the person, or by the persons jointly and severally, if more than one, so specified in relation to any class of conveyance,

(b) with the person, or with the persons jointly and severally, if more than one, who is the other party, or are the other parties, to the conveyance,

and have the effect specified in Parts 1 and 3 of Schedule 3.

(2) The classes of conveyance referred to in subsection (1) are—

(3) Where in a conveyance (other than a mortgage) part of land comprised in a lease is, without the consent of the lessor, expressed to be conveyed—

(a) subject to the entire rent, then covenant (1) in paragraph (2) of Part 3 of Schedule 3 has effect as if the entire rent were the apportioned rent,

(b) exonerated from the entire rent, then covenant (2) in paragraph (2) of Part 3 of Schedule 3 has effect as if the entire rent were the balance of the rent, and “(other than the covenant to pay the entire rent)” were omitted from the covenant.

(4) The benefit of a covenant implied under this section—

(a) is annexed to and passes with the estate or interest of the implied covenantee,

(b) is enforceable by every person, including a tenant, mortgagee and any other person deriving title from or under the implied covenantee, in whom that estate or interest, or any part of it, or an estate or interest derived out of it, is vested from time to time.

(5) Any covenant implied under this section may, by the terms of the conveyance, be—

(a) modified by the express provisions of the conveyance and, if so modified, operates as if the modification were included in this section and Schedule 3,

(b) extended by providing expressly in the conveyance that—

(i) the land conveyed, or

(ii) the part of the land which remains vested in the covenantor,

stands charged with the payment of all money which would otherwise become payable under the implied covenant.

82.. Covenants by or with two or more persons.

82.— (1) Where under a covenant persons are—

[CA 1881, s. 60]

(a) covenantors, the covenant binds them and any two or more of them jointly and each of them severally,

(b) covenantees, the covenant shall be construed as being also made with each of them.

(2) A covenant made with persons jointly to convey, pay money or do any other act to them or for their benefit, implies an obligation to do the act to, or for the benefit of—

(a) the survivor or survivors of them, or

(b) any other person on whom the right to sue on the covenant devolves.

(3) This section takes effect subject to the terms of the covenant or conveyance in which it is contained or implied or of any statutory provision implying the covenant.

(4) In this section “covenant” includes an express or implied covenant and a bond or obligation contained in a deed.

83.. Covenants by person jointly with others.

83.— A covenant, whether express or implied, entered into by a person with that person jointly with another person or other persons shall be construed and is enforceable as if it had been entered into with that other person or persons alone.

84.. Production and safe custody of documents.

84.— (1) Where a person retains possession of documents and gives to another person in writing—

[CA 1881, s. 9]

(a) an acknowledgment of the right of that other to production of those documents and to delivery of copies of them (“the acknowledgment”),

(b) an undertaking for the safe custody of those documents (“the undertaking”),

the acknowledgment and the undertaking have the effect specified in this section.

(2) The obligations imposed by an acknowledgment are to—

(a) produce the documents or any of them at all reasonable times for the purpose of inspection and of comparison with abstracts or copies of the documents, by the person entitled to request production or by any person authorised in writing by that person,

(b) produce the documents or any of them in court or any other place where, or on any occasion when, 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 relating to that title or claim,

(c) deliver to the person entitled to request them such copies or abstracts, attested or unattested, of or from the documents or any of them.

(3) The obligation imposed by an undertaking is to keep the documents complete, safe, uncancelled and undefaced.

(4) The obligations shall be performed from time to time—

(a) in the case of the acknowledgment, at the request in writing of,

(b) in the case of the undertaking, in favour of,

the person to whom it is given, or any person, not being a tenant, who has or who claims any estate, interest or right through or under that person or who otherwise becomes through or under that person interested in or affected by the terms of the document to which the acknowledgment or undertaking relates.

(5) The acknowledgment and undertaking bind the documents to which they relate in the possession or under the control of the person who retains them and every other person having possession or control of them from time to time but they bind each such individual possessor or person as long only as that person has possession or control.

(6) Each person having possession or control of such documents is bound specifically to perform the obligations imposed by this section, unless prevented from doing so by fire or other inevitable accident, but all costs and expenses of or incidental to specific performance of the acknowledgment shall be paid by the person requesting performance.

(7) The acknowledgment does not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, arising from whatever cause.

(8) Any person claiming to be entitled to the benefit of an undertaking may apply to the court for damages for any loss or destruction of, or injury to, the documents or any of them to which it relates.

(9) Upon such application the court may direct such inquiries and make such order as to costs or other matters as it thinks fit.

(10) An acknowledgment or undertaking under this section satisfies any liability to give a covenant for production and delivery of copies of or extracts from documents or for safe custody of documents.

(11) The rights conferred by an acknowledgment or undertaking under this section are in addition to all such other rights relating to production, inspection or obtaining copies of documents as are not satisfied by the giving of the acknowledgment or undertaking.

(12) This section—

(a) has effect where an acknowledgment or undertaking is given by a person to that same person in different capacities in the same way as where it is given by one person to another,

(b) takes effect subject to the terms of the acknowledgment or undertaking.

85.. Notices.

85.— (1) Subject to subsection (2), where an instrument makes provision for giving or serving a notice it may be given or served as if it were authorised or required to be given or served under this Act.

(2) Subsection (1) takes effect subject to the terms of the instrument.

Chapter 5

86.. Restrictions on constructive notice.

86.— (1) A purchaser is not affected prejudicially by notice of any fact, instrument, matter or thing unless—

[CA 1882, s. 3]

(a) it is within the purchaser’s own knowledge or would have come to the purchaser’s knowledge if such inquiries and inspections had been made as ought reasonably to have been made by the purchaser, or

(b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of the purchaser’s counsel, as such, or solicitor or other agent, as such, or would have come to the knowledge of the solicitor or other agent if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or agent.

(2) Without prejudice to section 57(4), subsection (1) does not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, provision or restriction contained in any instrument under which the purchaser’s title is derived, immediately or mediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.

(3) A purchaser is not, by reason of anything in this section, affected by notice in any case where the purchaser would not have been so affected if this section had not been enacted.

87.. Court orders.

87.— (1) Without prejudice to any ground of appeal against any order, an order of the court under any statutory or other jurisdiction is not invalid as against a purchaser on the ground of want of—

[CA 1881, s. 70]

(a) jurisdiction, or

(b) any concurrence, consent, notice or service.

(2) This section applies to any lease, sale or other act under the authority of the court and purporting to be in pursuance of any statutory provision, notwithstanding any exception in that provision.

88.. Regulations for Part 9.

88.— With a view to facilitating electronic conveyancing of land or providing further protection for the interests of vendors and purchasers of land, the following matters may be prescribed:

(a) the general conditions of sale applicable to a contract for the sale or other disposition of an estate or interest in land;

(b) any other matter referred to in this Part.

PART 10 Mortgages

Chapter 1

89.. Legal mortgages.

89.— (1) A legal mortgage of land may only be created by a charge by deed and such a charge, unless the context requires otherwise, is referred to in this Part as a “mortgage”; and “mortgagor” and “mortgagee” shall be read accordingly.

(2) Subject to subsection (3), from the commencement of this Chapter—

(a) any instrument which would, but for the provisions of this section, convey a legal estate or interest in land by way of mortgage, or

(b) any other transaction which under any instrument would operate, but for the provisions of this section, as a mortgage by conveyance of a legal estate or interest in land,

does not create a legal mortgage.

(3) From the commencement of this Chapter, any transaction which under any statutory provision would, but for the provisions of this section, operate as a mortgage by conveyance of a legal estate or interest in land operates as if it were a mortgage under this Part.

(4) From the commencement of this Chapter, any power, whenever created, to mortgage or lend money on mortgage of a legal estate or interest in land operates as a power to mortgage the legal estate or interest by a mortgage under this Part or to lend money on the security of such a mortgage.

(5) This Part applies to both unregistered and registered land.

(6) Nothing in this section affects the creation of equitable mortgages of land.

(7) From the commencement of this Chapter, it is not possible to create a Welsh mortgage and any purported creation of such a mortgage is void.

(8) For the purposes of subsection (7), a “Welsh mortgage” includes any transaction under which a grantee or chargee of land is entitled to hold possession, and take rents and profits in lieu of interest on a loan, of land without the grantor or chargor being under a personal obligation to repay the loan, but being entitled to redeem.

90.. Position of mortgagor and mortgagee.

90.— (1) Subject to this Part, where a mortgage is created after the commencement of this Chapter—

(a) the mortgagor has the same powers and rights and the same protection at law and in equity as the mortgagor would have been entitled to,

(b) the mortgagee has the same obligations, powers and rights as the mortgagee would have had,

if the mortgagee’s security had been created by a conveyance before that commencement of the legal estate or interest in the land of the mortgagor.

(2) Without prejudice to the generality of subsection (1)(b) and subject to subsection (3), a first mortgagee has the same right to possession of documents of title as such mortgagee would have had if the security had been created by a conveyance before the commencement of this Chapter.

(3) Notwithstanding any stipulation to the contrary, a mortgagee who retains possession or control of documents of title relating to the mortgaged land is, in addition to being subject to the mortgagor’s rights under section 91, responsible for their safe custody as if an undertaking for this were given under section 84.

Chapter 2

91.. Documents of title.

91.— (1) Subject to subsection (2), a mortgagor, as long as the right to redeem exists, may from time to time, at reasonable times, inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the possession or power of the mortgagee.

[CA 1881, s. 16]

(2) Rights under subsection (1) are exercisable—

(a) on the request of the mortgagor, and

(b) on payment by the mortgagor of the mortgagee’s reasonable costs and expenses in relation to the exercise.

(3) Subsection (1) has effect notwithstanding any stipulation to the contrary.

92.. Restriction on consolidation of certain mortgages.

92.— Notwithstanding any stipulation to the contrary, a mortgagor is entitled to redeem any housing loan mortgage without having to pay any money due under any other mortgage with the same mortgagee, whether that other mortgage is of the same or other property.

[CA 1881, s. 17]

93.. Transfer in lieu of discharge.

93.— (1) A mortgagor who is entitled to redeem may, subject to compliance with the terms on which the mortgagor would be entitled to require a discharge, require the mortgagee, instead of discharging the mortgage, to assign the mortgage debt and transfer the mortgage to any third person, as the mortgagor directs, and on the mortgagor so directing, the mortgagee is bound to assign and transfer accordingly.

[CA 1881, s. 15][CA 1882, s. 12]

(2) The rights conferred by subsection (1) belong to and may be enforced by each incumbrancer or 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) This section—

(a) does not apply in the case of a mortgagee being or having been in possession,

(b) applies notwithstanding any stipulation to the contrary.

94.. Court order for sale.

94.— (1) This section applies to any action brought by a mortgagor for—

(a) redemption, or

(b) sale, or

(c) the raising and payment in any manner of the mortgage debt, or

(d) any combination of these in the alternative.

(2) In any action to which this section applies the court may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit.

(3) Without prejudice to the generality of the court’s discretion under subsection (2), it may—

(a) allow any time for redemption or payment of the mortgage debt,

(b) require lodgment in court of a sum to meet the expenses of a sale and to secure a performance of its terms,

(c) give directions as to costs and require the giving of security for costs,

(d) direct a sale without previously determining priorities of incumbrances,

(e) give the conduct of the sale to a particular party,

(f) make a vesting order conveying the mortgaged property to a purchaser or appoint a person to make such a conveyance.

(4) Except in the case of a housing loan mortgage, this section takes effect subject to the terms of the mortgage.

95.. Advances on joint account.

95.— (1) Where—

[CA 1881, s. 61]

(a) money advanced or owing under a mortgage, or any part of it, is expressed to be advanced by or owing to two or more persons out of money, or as money, belonging to them on a joint account, or

(b) such a mortgage is made to two or more persons jointly and not in shares,

the mortgage debt, or other money or money’s worth for the time being due to those persons, shall, as between them and the mortgagor, be deemed to belong to them on a joint account.

(2) The receipt in writing of—

(a) the survivors or last survivor of those persons, or

(b) the personal representative of the last survivor,

is 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 such joint account.

(3) This section takes effect subject to the terms of the mortgage.

(4) In this section “mortgage” includes an obligation for payment of money and a transfer of a mortgage or of such an obligation; and “mortgagor” shall be read accordingly.

Chapter 3

96.. Powers and rights generally.

96.— (1) Subject to this Part, the powers and rights of a mortgagee under sections 97 to 111—

(a) apply to any mortgage created by deed after the commencement of this Chapter,

(b) vest, subject to section 62 of the Act of 1964, as soon as the mortgage is created,

(c) do not become exercisable unless their exercise is for the purpose of protecting the mortgaged property or realising the mortgagee’s security,

(d) in relation to the mortgaged property, apply to any part of it.

(2) A mortgagee’s right of foreclosure is abolished.

(3) The provisions relating to the powers and rights conferred by this Chapter apply to any housing loan mortgage notwithstanding any stipulation to the contrary and notwithstanding any powers and rights expressly conferred under such a mortgage, but in relation to any other mortgage, except where this Part provides to the contrary, take effect subject to the terms of the mortgage.

97.. Taking possession.

97.— (1) Subject to section 98, a mortgagee shall not take possession of the mortgaged property without a court order granted under this section, unless the mortgagor consents in writing to such taking not more than 7 days prior to such taking.

(2) A mortgagee may apply to the court for an order for possession of the mortgaged property and on such application the court may, if it thinks fit, order that possession be granted to the applicant on such terms and conditions, if any, as it thinks fit.

98.. Abandoned property.

98.— (1) Where a mortgagee has reasonable grounds for believing that—

(a) the mortgagor has abandoned the mortgaged property, and

(b) urgent steps are necessary to prevent deterioration of, or damage to, the property or entry on it by trespassers or other unauthorised persons,

the mortgagee may apply to the District Court, or any court already seised of any application or proceedings relating to the mortgaged property, for an order authorising the mortgagee to take possession of the property.

(2) On such an application the court may make an order authorising the mortgagee to take possession of the property on such terms and conditions as the court thinks fit, notwithstanding that the mortgagor dissents or does not appear.

(3) Without prejudice to the generality of subsection (2), an order under this section may specify—

(a) the period during which the mortgagee may retain possession of the mortgaged property,

(b) works which may be carried out by the mortgagee for the purpose of—

(i) protecting the mortgaged property, or

(ii) preparing it for sale in exercise of the mortgagee’s power under section 100,

(c) costs and expenses incurred by the mortgagee which may be added to the mortgage debt.

(4) The mortgagee is not liable to account strictly to the mortgagor during a period of possession under an order under this section.

99.. Mortgagee in possession.

99.— (1) Subject to the terms of any order under section 97 or section 98, a mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) shall take steps within a reasonable time to exercise the power to—

(a) sell the mortgaged property under section 100, or

(b) if it is not appropriate to sell, lease the property under section 112 and use the rent and any other income received from the lessee to reduce the mortgage debt, including interest accrued or accruing.

(2) Section 34 of the Act of 1957 does not apply to a mortgagee who takes possession of land under a court order under section 97 or section 98.

100.. Power of sale.

100.— (1) Subject to subsection (3) and sections 101 to 107, a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgaged property provided—

[CA 1881, ss. 19(1)(i), 20, 21(4), 21(6) and (7)]

[CA 1911, s. 5(2)]

(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,

and provided in each such case 28 days’ notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.

(2) The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.

(3) At any time after expiration of the 28 days’ notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit.

(4) An application under subsection (3) may be made with an application under section 97(2) and, in such case, both may be heard together.

(5) A mortgagee is not answerable for any involuntary loss resulting from the exercise or execution of the power of sale under this Chapter, of any trust connected with it or of any power or provision contained in the mortgage.

(6) Once the power of sale becomes exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property an estate or interest in priority to the mortgage, all deeds and documents relating to the property, or its title, which a purchaser under the power of sale would be entitled to demand and recover.

101.. Applications under sections 97 and 100.

101.— (1) Upon an application for an order under, and without prejudice to the generality of, sections 97(2) and 100(3), where it appears to the court that the mortgagor is likely to be able within a reasonable period to pay any arrears, including interest, due under the mortgage or to remedy any other breach of obligation arising under it, the court may—

(a) adjourn the proceedings, or

(b) on making an order, or at any time before enforcement or implementation of such an order—

(i) stay the enforcement or implementation, or

(ii) postpone the date for delivery of possession to the mortgagee, or

(iii) suspend the order,

for such period or periods as it thinks reasonable and, if an order is suspended, the court may subsequently revive it.

(2) Any adjournment, stay, postponement or suspension under subsection (1) may be made subject to such terms and conditions with regard to payment by the mortgagor of any sum secured by the mortgage or remedying of any breach of obligation as the court thinks fit.

(3) The court may revoke or vary any term or condition imposed under subsection (2).

(4) Subject to subsection (5), an application under section 97(2) or section 100(3) may be made to the High Court.

(5) Where an application under section 97(2) or section 100(3)concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.

(6) The jurisdiction of the Circuit Court to hear and determine applications under sections 97(2) and 100(3) concerning property which is subject to a housing loan mortgage shall be exercised by the judge of the circuit where the property or any part of it is situated.

(7) Nothing in this section affects the jurisdiction of the court under sections 7 and 8 of the Act of 1976.

102.. Incidental powers.

102.— Incidental to the power of sale are the powers to—

[CA 1881, s. 19(1)(i)][CA 1911, s. 4]

(a) sell the mortgaged property—

(i) subject to prior charges or not,

(ii) either together or in lots,

(iii) by public auction, tender or private contract,

(iv) subject to such conditions respecting title, evidence of title, or other matter as the mortgagee or other person selling thinks fit,

(b) rescind any contract for sale and resell,

(c) impose or reserve or make binding by covenant or otherwise, on the sold part of the mortgaged land, or on the unsold part, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, for the purpose of their more beneficial working, or with respect to any other matter,

(d) sell the mortgaged land, or all or any mines and minerals apart from the surface, with or without—

(i) any easement, right or privilege connected with building or other purposes on the sold part of the mortgaged land or the unsold part,

(ii) an exception or reservation of all or any of the mines and minerals in the mortgaged land and with or without a grant, reservation or imposition of powers of working, wayleaves, rights of way, rights of water and drainage and other powers, easements, rights and privileges for or connected with mining purposes, in relation to or on the sold part of the mortgaged land or the unsold part,

(iii) covenants by the purchaser to expend money on the land sold.

103.. Obligations on selling.

103.— (1) In the exercise of the power of sale conferred by thisChapteror any express power of sale, the mortgagee, or any receiver or other person appointed by the mortgagee, shall, notwithstanding any stipulation to the contrary in the mortgage, ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable.

(2) Within 28 days after completion of the sale, the mortgagee shall serve a notice in the prescribed form on the mortgagor containing information relating to the sale.

(3) A mortgagee who, without reasonable cause, is in breach of the obligation imposed by subsection (2) is guilty of an offence.

(4) Nothing in this section affects the operation of any rule of law relating to the duty of a mortgagee to account to a mortgagor.

(5) This section does not apply to a building society within the meaning of the Act of 1989 or a receiver appointed under the Companies Acts.

(6) In subsection (2) “mortgagor” includes a person last known to the mortgagee to be the mortgagor, but does not include a person to whom, without the knowledge of the mortgagee, any of the rights or liabilities of the mortgagor under the mortgage have been assigned.

104.. Conveyance on sale.

104.— (1) A mortgagee exercising the power of sale conferred by this Chapter, or an express power of sale, has power to convey the property in accordance with subsection (2)—

[CA 1881, s. 21(1)]

(a) freed from all estates, interests and rights in respect of which the mortgage has priority,

(b) subject to all estates, interests and rights which have priority to the mortgage.

(2) Subject to subsections (3)(b) and (4), the conveyance—

(a) vests the estate or interest which has been mortgaged in the purchaser,

(b) extinguishes the mortgage, but without prejudice to any personal liability of the mortgagor not discharged out of the proceeds of sale,

(c) vests any fixtures or personal property included in the mortgage and the sale in the purchaser.

(3) This section—

(a) applies to a sale by a sub-mortgagee so as to enable the sub-mortgagee to convey the head-mortgagor’s property in the same manner as the mortgagee,

(b) does not apply to a mortgage of part only of a tenancy unless any rent which is reserved and any tenant’s covenants have been apportioned as regards the property mortgaged.

(4) Where the mortgaged property comprises registered land, the conveyance is subject to section 51 of the Act of 1964.

105.. Protection of purchasers.

105.— (1) Where a conveyance is made in professed exercise of the power of sale conferred by this Chapter, the title of the purchaser is not impeachable on the ground that—

[CA 1881, s. 21(2)][CA 1911, s. 5(1)]

(a) no case had arisen to authorise the sale, or

(b) due notice had not been given, or

(c) the power was otherwise improperly exercised,

and a purchaser is not, either before or on conveyance, required to see or inquire whether the power is properly exercised.

(2) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the person exercising the power.

106.. Mortgagee’s receipts.

106.— (1) Subject to subsection (2), the receipt in writing of a mortgagee is a conclusive discharge for any money arising under the power of sale conferred by this Chapter, or for any money or securities comprised in the mortgage, or arising under it, and a person paying or transferring the same to the mortgagee is not required to inquire whether any money remains due under the mortgage.

[CA 1881, s. 22)]

(2) Subsection (1) does not apply where the purchaser has actual knowledge of an impropriety or irregularity in the exercise of the power of sale or knowingly participates in such an exercise.

(3) Subject to section 107(5), money received by a mortgagee under the mortgage or from the proceeds of securities comprised in it shall be applied as section 107 requires as regards money arising from a sale under the power of sale conferred by this Chapter.

107.. Application of proceeds of sale.

107.— (1) Money received by the mortgagee which arises from the sale of mortgaged property shall be applied in the following order—

[CA 1881, s. 21(3)]

(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,

(b) in payment of all charges, costs and expenses properly incurred by the mortgagee as incident to the sale or any attempted sale or otherwise,

(c) in discharge of the mortgage debt, interest and costs, and other money, if any, due under the mortgage.

(2) Any residue of the money so received shall be held on trust by the mortgagee to be paid to the person who would, but for the sale, be the mortgagee secured on the property sold next in priority after the mortgagee selling, or is otherwise authorised to give receipts for the money so received, or, if there is no such person, the mortgagor.

(3) Where, in accordance with subsection (2), the mortgagee gives effect to the trust of the residue by paying it to a subsequent mortgagee, the latter shall apply it in accordance with subsections (1)(c)and (2) and similar obligations attach to each subsequent mortgagee who receives any of the residue.

(4) Any mortgagee who so gives effect to the trust is discharged from any further obligation with respect to the residue.

(5) For the purposes of the application of subsection (1)(b) to money received under section 106(3), charges, costs and expenses payable include those properly incurred in recovering and receiving the money or securities, and in conversion of securities into money, instead of those incident to the sale.

108.. Appointment of receiver.

108.— (1) Where—

[CA 1881, ss. 19(1)(iii), 24(1)—(7)]

(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,

the mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt, may appoint, by writing, such person as the mortgagee or that other person thinks fit to be a receiver of—

(i) the income of the mortgaged property, or

(ii) if the mortgaged property comprises an interest in income, or a rentcharge or other annual or other periodical sum, that property.

(2) A receiver appointed under subsection (1)is the agent of the mortgagor, who is solely responsible for the receiver’s acts or defaults, unless the mortgage provides otherwise.

(3) The receiver may—

(a) demand and recover all the income to which the appointment relates, by action or otherwise, in the name either of the mortgagor or mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of,

(b) give effectual receipts accordingly for such income,

(c) exercise any powers delegated by the mortgagee or other person to the receiver.

(4) Any power delegated to the receiver shall be exercised in accordance with this Chapter.

(5) A person paying money to the receiver is not required to inquire whether the receiver is authorised to act.

(6) The receiver may be removed, and a new receiver may be appointed, by the mortgagee or the other person in writing.

(7) The receiver may retain out of any money received, for remuneration and in satisfaction of all costs incurred as receiver, a commission at the prescribed rate.

(8) 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, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance, out of the money received, any property comprised in the mortgage, whether affixed to land or not, which is of an insurable nature.

109.. Application of money received.

109.— (1) Subject to section 110(4), the receiver shall apply all money received in the following order—

[CA 1881, s. 24(8)]

(a) in discharge of all rates, rents, taxes and other outgoings affecting the mortgaged property,

(b) in discharge of all annual sums or other payments, and the interest on all principal sums, which have priority to the mortgage under which the receiver is appointed,

(c) in payment of the receiver’s commission,

(d) in payment of premiums on insurance, if any, payable under this Chapter or the mortgage,

(e) in defraying the cost of repairs as directed in writing by the mortgagee,

(f) in payment of interest accruing due in respect of any principal sum due under the mortgage,

(g) in or towards discharge of the principal sum, if so directed in writing by the mortgagee.

(2) The residue (if any) of any money so received after making the payments specified in subsection (1) shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive that money or who is otherwise entitled to the mortgaged property.

110.. Insurance.

110.— (1) A mortgagee may insure and keep insured any building, effects or other property of an insurable nature, whether affixed to the land or not, which forms part of the mortgaged property.

[CA 1881, ss. 19(1)(ii), 23]

(2) The insurance shall be for the full reinstatement cost of repairing any loss or damage arising from fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance.

(3) The mortgagee may give a good discharge for any money payable under any such insurance, but, subject to subsection (4), so much of such money as exceeds the mortgage debt shall be dealt with by the mortgagee as if it were the proceeds of a sale of the mortgaged property.

(4) The mortgagee may require any money received under such or other insurance of the mortgaged property to be applied—

(a) by the mortgagor in making good loss or damage covered by the insurance, or

(b) in or towards the discharge of the mortgage debt.

111.. Future advances.

111.— (1) Where a mortgage is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the mortgagee is entitled, in priority to any subsequent mortgage, to the payment of any sum due in respect of any such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent mortgage.

(2) In subsection (1) “future advances” includes sums from time to time due on a current account and all sums which by agreement or in the course of business between the parties are considered to be advances on the security of the mortgage.

(3) Save in regard to the making of such future advances the right to tack in any form is abolished, but without prejudice to any priority acquired by tacking before the commencement of this Chapter.

(4) This section—

(a) applies to mortgages made before or after the commencement of this Chapter,

(b) does not apply to registered land.

Chapter 4

112.. Leasing powers.

112.— (1) A mortgagor of land, while in possession, may, as against every other incumbrancer, lease the land with the consent in writing of the mortgagee, which consent shall not be unreasonably withheld.

[CA 1881, s. 18][CA 1911, s. 3]

(2) A lease made without such consent is voidable by a mortgagee who establishes that—

(a) the lessee had actual knowledge of the mortgage at the time of the granting of the lease, and

(b) the granting had prejudiced the mortgagee.

(3) A mortgagee of land while in possession or, after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver, may, as against all prior incumbrancers, if any, and the mortgagor, lease the land provided—

(a) it is for the purpose of—

(i) preserving the value of the land, or

(ii) protection of the mortgagee’s security, or

(iii) raising income to pay interest due under the mortgage or otherwise reduce the debt,

or

(b) it is otherwise an appropriate use of the land pending its sale, or

(c) the mortgagor consents in writing, or

(d) the court in any action relating to the mortgaged land makes an order permitting such lease.

(4) In this section “mortgagor” does not include an incumbrancer deriving title from or under the original mortgagor.

(5) The power of leasing conferred by this section applies only to mortgages created after the commencement of this Part.

113.. Exercise of leasing powers.

113.— (1) A lease to be granted under section 112 shall—

(a) reserve the best rent which can reasonably be obtained, taking into account any premium or other capital sum paid by the lessee and other relevant circumstances, and

(b) be otherwise granted on the best terms that can reasonably be obtained and accord with good commercial practice,

and execution of the lease by the lessor shall be sufficient evidence of execution and delivery of the lease.

(2) A purported lease which fails to comply with subsection (1) is void.

(3) A duplicate of a lease granted in accordance with subsection (1) shall be executed by the lessee and delivered to the lessor.

(4) In the case of a lease by the mortgagor, the mortgagor shall, within one month after making the lease, deliver to the mortgagee or, where there are more than one, the mortgagee first in priority, a copy of the lease duly executed by the lessee.

(5) Failure by the mortgagor to comply with subsection (4) does not affect the validity of the lease.

(6) Where a premium or other capital sum is paid by the lessee and the lease is granted by—

(a) the mortgagor, it, or, where it exceeds the mortgage debt, so much of it as is required for the purpose, shall be applied in or towards discharge of that debt, whether or not the date for redemption has arrived,

(b) the mortgagee, it shall be applied in accordance with section 107as if it comprised the proceeds of a sale.

114.. Surrenders.

114.— (1) Subject to subsection (2), a mortgagor or mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) may accept a surrender of a lease previously granted under section 112 or as authorised by the terms of the mortgage, whether the surrender relates to the whole or part only of the land leased.

[CA 1911, s. 3]

(2) Subsection (1) applies only where the surrender of the previous lease is for the purpose of granting a new lease under section 112 or as authorised by the terms of the mortgage.

(3) On such a surrender—

(a) the term of the new lease shall not be less than the unexpired term which would have existed under the surrendered lease if it not been surrendered,

(b) the rent reserved by the new lease shall not be less than the rent which would have been payable under the surrendered lease if it had not been surrendered,

(c) where part only of the land has been surrendered—

(i) the rent reserved by the new lease shall not be less than is required to make the aggregate rents payable under the remaining lease and new lease not less than the rent payable under the surrendered lease if no partial surrender had been accepted, and

(ii) any other modifications of the original lease shall comply with section 113.

(4) A purported acceptance of a surrender which fails to comply with subsection (3) is void.

(5) Where a surrender involves payment of a premium or consideration other than the agreement to accept surrender, the surrender is void unless, in the case of a surrender—

(a) to the mortgagor, the consent of incumbrancers, or

(b) to a second or subsequent mortgagee, the consent of any prior incumbrancer,

is obtained.

PART 11 Judgment Mortgages

115.. Interpretation of Part 11.

115.— In this Part, unless the context otherwise requires—

[JMA 1858, ss. 3 and 4]

“creditor” includes—

(a) an authorised agent and any person authorised by the court to register a judgment mortgage on behalf of a judgment creditor,

(b) one or some only of several creditors who have obtained the same judgment;

“judgment” includes any decree or order of any court of record.

116.. Registration of judgment mortgages.

116.— (1) A creditor who has obtained a judgment against a person may apply to the Property Registration Authority to register a judgment mortgage against that person’s estate or interest in land.

[JMA 1850, s. 6]

(2) A judgment mortgage shall be registered in the Registry of Deeds or Land Registry, as appropriate.

(3) For the avoidance of doubt it is and always has been the case that—

(a) there is no requirement to re-register a judgment mortgage in order to maintain its validity or enforceability against the land or a purchaser of the land,

(b) a judgment mortgage may be registered—

(i) notwithstanding that the judgment debtor has obtained an order of the court granting a stay of execution, unless the court orders otherwise,

(ii) against the interest of a beneficiary under a trust for sale of land.

117.. Effect of registration.

117.— (1) Registration of a judgment mortgage under section 116 operates to charge the judgment debtor's estate or interest in the land with the judgment debt and entitles the judgment mortgagee to apply to the court for an order under this section or section 31.

[JMA 1850, ss. 7 and 8][JMA 1850, s. 8]

(2) On such an application the court may make—

(a) an order for the taking of an account of other incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,

(b) an order for the sale of the land, and where appropriate, the distribution of the proceeds of sale,

(c) such other order for enforcement of the judgment mortgage as the court thinks appropriate.

(3) The judgment mortgage is subject to any right or incumbrance affecting the judgment debtor’s land, whether registered or not, at the time of its registration.

(4) For the purposes of this section, a right or incumbrance does not include a claim made in an action to a judgment debtor's estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action, unless the claim seeks an order—

(a) under the Act of 1976, the Act of 1995 or the Act of 1996, or

(b) specifically against that estate or interest in land.

(5) Section 74 applies to a voluntary conveyance of land made by the judgment debtor before the creditor registers a judgment mortgage against that land under section 116 as if the creditor were a purchaser for the purposes of section 74.

118.. Extinguishment of judgment mortgages.

118.— Registration in the Registry of Deeds of a certificate of satisfaction of a judgment in respect of which a judgment mortgage has been registered extinguishes the judgment mortgage.

[JMA 1850, s. 9]

119.. Amendment of section 32 of the Act of 1957.

119.— Section 32 of the Act of 1957 is amended by the addition of the following subsection:

“(3) In the case of a judgment mortgage, the right of action accrues from the date the judgment becomes enforceable and not the date on which it is registered as a mortgage.”.

PART 12 LIS PENDENS

120.. Interpretation of Part 12.

120.— In this Part—

“manner” includes form;

“prescribed” means prescribed by rules of court;

“register” means the register of lis pendens maintained under section 121.

121.. Register of lis pendens.

121.— (1) A register of lis pendens affecting land shall be maintained in the prescribed manner in the Central Office of the High Court.

[JA 1844, s. 10]

(2) The following may be registered as a lis pendens:

(a) any action in the Circuit Court or the High Court in which a claim is made to an estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action; and

(b) any proceedings to have a conveyance of an estate or interest in land declared void.

(3) Such particulars as may be prescribed shall be entered in the register.

(4) A lis pendens registered under section 10 of the Judgments (Ireland) Act 1844 which has not been vacated before the repeal of that section continues to have effect as if that section has not been repealed and such registration shall be deemed to form part of the register to be maintained under subsection (1).

122.. Cancellation of entry in register.

122.— An entry of a lis pendens in the register shall be cancelled—

[JRA 1871, s. 21]

(a) with the consent, given in the prescribed manner, of the person on whose application it was registered, or

(b) upon the lodgement in the Central Office of the High Court of a notice, given in the prescribed manner, of an order under section 123 vacating the lis pendens.

123.. Court order to vacate lis pendens.

123.— Subject to section 124, a court may make an order to vacate a lis pendens on application by—

[LPA 1867, s. 2]

(a) the person on whose application it was registered, or

(b) any person affected by it, on notice to the person on whose application it was registered—

(i) where the action to which it relates has been discontinued or determined, or

(ii) where the court is satisfied that there has been an unreasonable delay in prosecuting the action or the action is not being prosecuted bona fide.

124.. Transitional.

124.— A court shall not under section 123 vacate a lis pendens, registered under section 10 of the Judgments (Ireland) Act 1844 before the repeal of that section, on a ground other than one on which the lis pendens could have been vacated immediately before that repeal.

125.. Protection of purchasers.

125.— A lis pendens does not bind a purchaser of unregistered land without actual knowledge of it unless it has been registered in the Central Office of the High Court within 5 years before the making of the conveyance to the purchaser.

[JMA 1850, s. 5]

126.. Amendment of Second Schedule to Courts and Court Officers Act 1995.

126.— The Courts and Court Officers Act 1995 is amended, in the Second Schedule, in paragraph 1, by substituting the following for subparagraph (xxiv):

“(xxiv) An order under section 123 of the Land and Conveyancing Law Reform Act 2009.”.

PART 13 Amendments to Registration of Title Act 1964

127.. Amendment of section 3.

127.— Section 3 (interpretation) of the Act of 1964 is amended in subsection (1)—

(a) by the insertion of the following definitions:

“ ‘instrument’ has the meaning given to it by section 3 of the Land and Conveyancing Law Reform Act 2009;

‘owner’ includes full owner;”,

(b) by the substitution of “ ‘freehold land’ means land the ownership of which is an estate in fee simple in possession;” for the definition of “freehold land”,

(c) by the substitution of “ ‘judgment mortgage’ means a mortgage registered by a judgment creditor pursuant to section 116 of the Land and Conveyancing Law Reform Act 2009;” for the definition of “judgment mortgage”,

(d) by the substitution of “ ‘land’ has the meaning given to it by section 3 of the Land and Conveyancing Law Reform Act 2009;” for the definition of “land”,

(e) by the substitution of “estate” for “interest” where it first occurs in the definition of “leasehold interest”, and

(f) by the deletion of the definitions of “Bankruptcy Acts”, “Registry of Deeds”, “Settled Land Acts”, “settlement”, “settled land”, “tenant for life” and “trustees of the settlement”.

128.. Substitution of section 25.

128.— The following section is substituted for section 25 (effect of failure to register where registration compulsory) of the Act of 1964:

“25.— A person shall not acquire an estate or interest in land in any case in which registration of ownership of the land is or becomes compulsory under section 23 or 24 unless the person is registered as owner of the estate or interest within 6 months after the purported acquisition or at such later time as the Authority (or, in case of refusal, the court) may sanction in any particular case, but on any such registration the person’s title shall relate back to the date of the purported acquisition, and any dealings with the land before the registration shall have effect accordingly.”.

129.. Amendment of section 69.

129.— Section 69 (burdens which may be registered as affecting registered land) of the Act of 1964 is amended by the insertion in subsection (1) of the following paragraph after paragraph (k):

“(kk) a freehold covenant within the meaning of section 48of the Land and Conveyancing Law Reform Act 2009;”.

130.. Amendment of section 71.

130.— The following section is substituted for section 71 (registration of judgment mortgages) of the Act of 1964:

“71.— (1) Application for registration of a judgment mortgage under section 116 of the Land and Conveyancing Law Reform Act 2009 shall, in the case of registered land, be in such form and in such manner as may be prescribed.

(2) Registration under subsection (1) shall operate to charge the estate or interest of the judgment debtor subject to—

(a) the burdens, if any, registered as affecting that estate or interest,

(b) the burdens to which, though not so registered, that estate or interest is subject by virtue of section 72,

(c) all unregistered rights subject to which the judgment debtor held that estate or interest at the time of registration,

and with the effect stated in section 117 of the said 2009 Act.”.

PART 14 Miscellaneous

131.. Interpretation (Part 14).

131.— In this Part, “business” and “lease” have the same meanings as they have in the Landlord and Tenant (Amendment) Act 1980.

132.. Review of rent in certain cases.

132.— (1) This section applies to a lease of land to be used wholly or partly for the purpose of carrying on a business.

(2) Subsection (1) shall not apply where—

(a) the lease concerned, or

(b) an agreement for such a lease,

is entered into prior to the commencement of this section.

(3) A provision in a lease to which this section applies which provides for the review of the rent payable under the lease shall be construed as providing that the rent payable following such review may be fixed at an amount which is less than, greater than or the same as the amount of rent payable immediately prior to the date on which the rent falls to be reviewed.

(4) Subsection (3) shall apply—

(a) notwithstanding any provision to the contrary contained in the lease or in any agreement for the lease, and

(b) only as respects that part of the land demised by the lease in which business is permitted to be carried on under the terms of the lease.

133.. Abolition of power to seize a tenancy.

133.— The power of the sheriff, or of other persons entitled to exercise the sheriff’s powers, to seize a tenancy under a writ of fieri facias or other process of execution is abolished except in relation to a tenancy of land that is used wholly or partly for the purpose of carrying on a business.