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Niue Consolidated Legislation |
NIUE LAWS
LEGISLATION AS AT DECEMBER 2006
PROPERTY LAW ACT 1952
1952/51 (NZ) – 1 January 1953
1 Short title
2 Interpretation
3 [Repealed]
PART 1
DEEDS AND OTHER INSTRUMENTS
4 Formalities of deed
5 Deed by corporation
6 Receipt for consideration money
7 Person not named may take benefit
8 Construction of supplemental or annexed deed
9 Exercise of powers
10 Partitions, exchanges
11 Appointments
12 Disclaimers
13 [Repealed]
PART 2
GENERAL RULES AFFECTING PROPERTY
14-30 [Repealed]
31 Release of part of land charged not to be extinguishment of rent
32 Corporations may hold as joint tenants
33 Alienation of property may be restricted
33A Restrictions on ground of colour, race to be void
34 Disclaimer of powers
35 Intermediate income of contingent or executory gifts
36 Receipts for income by married infants
37 "Heirs" and other words interpreted
38 "Heirs of the body" and other words interpreted
39 [Repealed]
40 Appointments valid notwithstanding objects excluded
41-42 [Repealed]
PART 3
43-49 [Repealed]
PART 4
POWERS AND CONDITIONS OF SALE AND PROTECTION OF PURCHASERS AND CREDITORS
50-59 [Repealed]
60 Alienation with intent to defraud creditors
61-62 [Repealed]
PART 5
COVENANTS AND POWERS
63 Benefit of covenants relating to land
64 Burden of covenants relating to land
65 Effect of covenant with 2 or more jointly
66 Covenants and agreements made by a person with himself and others
66A Covenants and agreements made by a person with himself
67 Covenants to be joint and several
68 Implied covenants may be negatived
69 Benefit of covenant for title
70-71 [Repealed]
PART 6
COVENANTS IMPLIED IN CONVEYANCES
72 Covenants implied in conveyance by way of sale
73 Covenants implied in conveyance subject to encumbrance
74 Covenants implied in conveyance of term of years
75 Covenants implied in conveyance by trustees
PART 7
76-104 [Repealed]
PART 8
LEASES AND TENANCIES
General Provisions
105 Tenancy from year to year not to be implied
106 Covenants implied in leases
107 Powers in lessor
108 Effect of licence to assign
109 No fine for licence to assign
110 Licence or consent not to be unreasonably withheld
111 Merger of reversion not to affect remedies
112 Rent and benefit of lessee’s covenants to run with reversion
113 Obligation of lessor’s covenants to run with reversion
114 Apportionment of conditions on severance
115 Restriction on effect of waiver
116 Executor not personally liable for covenants
Relief Against Forfeiture
117 Interpretation
118 Restriction on and relief against forfeiture
119 Protection of underlessees on forfeiture of superior leases
Relief Against Refusal to Grant Renewal
120 Relief of lessee against refusal of lessor to grant a renewal or to assure the reversion
121 Limitation of time for application for relief
PART 9
EASEMENTS, RESTRICTIVE STIPULATIONS, AND ENCROACHMENTS
122 Easement in gross permitted
123 Access or use of light or air
124-126 [Repealed]
127 Power for Court to modify or extinguish easements and restrictive stipulations
128 Commissioner may authorise entry for erecting or repairing buildings
129 Power of Court to grant special relief in cases of encroachment
129A Relief in cases of mistake as to boundaries or identity of land
PART 10
ASSIGNMENTS OF THINGS IN ACTION
139 Assignment of debts and things in action
PART 11
MARRIAGE SETTLEMENTS
131-132 [Repealed]
133 Sanction of Court to be obtained
PART 12
POWERS OF ATTORNEY
134 Execution by attorney in his own name
135 Continuance until notice of death or revocation received
136 Irrevocable power of attorney for value
137 Power of attorney made irrevocable for fixed time
138 Conveyance under power of attorney from person not in Niue
139 Application to corporations
PART 13
PARTITION OF LAND AND DIVISION OF CHATTELS
140 In action for partition Court may direct land to be sold
141 Proceeds of sale, how applied
142 Costs in partition suits
143 Division of chattels
PART 14
APPORTIONMENT
144 Interpretation
145 Income apportionable in respect of time
146 Time when apportioned part payable
147 Recovery of apportioned parts
148 Exceptions and application
PART 15
149 [Repealed]
PART 16
RENT CHARGES AND OTHER ANNUAL SUMS
150 Recovery of annual sums charged on land
151 [Repealed]
PART 17
SERVICE OF NOTICES
152 Service of notices
PART 18
MISCELLANEOUS
153 [Repealed]
154 Protection of solicitors and trustees
155 [Spent]
_______________________
To consolidate and amend certain enactments relating to property
1 Short title
This is the Property Law Act 1952.
2 Interpretation
In this Act –
"conveyance" includes any deed of assignment, appointment, lease, settlement, or other assurance by deed of any property; and "convey" has a corresponding meaning;
"encumbrance" includes a mortgage in fee or for a less estate, and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum; and "encumbrance: has a corresponding meaning and includes every person entitled to the benefit of an encumbrance or entitled to require payment or discharge thereof;
"executors" and "administrators" of a deceased person mean respectively the persons to whom the right to administer the estate of the deceased has been granted by the proper court, whether for general, special, or limited purposes; and "executors" includes executors by right of representation;
"income", when used with reference to land, includes rents and profits;
"instrument" includes deed, will, Proclamation taking land, and Act of Parliament;
"possession", when used with reference to land, includes the receipt of income from it;
"property" includes real and personal property, and any estate or interest in any property real or personal and any debt, and anything in action, and any other right or interest;
"purchaser" includes a lessee or mortgagee, or other person who for valuable consideration takes or deals for any property; and "purchase" has a corresponding meaning; but "sale" means only a sale properly so called;
"rent" includes yearly or other rent, toll, duty, royalty, or other reservation by the acre, the ton, or otherwise; and "fine" includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium, or foregift;
"will" includes codicil.
3 [Repealed by 2004/270]
PART 1
DEEDS AND OTHER INSTRUMENTS
4 Formalities of deed
(1) Every deed, whether or not affecting property, shall be signed by the party to be bound by it and shall also be attested by at least 1 witness and, if the deed is executed in Niue, the witness shall add to his signature his place of abode and calling or description, but no particular form of words shall be requisite for the attestation.
(2) Except where the party to be bound by a deed is a corporation, sealing is not necessary.
(3) Formal delivery and indenting are not necessary in any case.
(4) Every deed executed as required by this section shall be binding on the party purported to be bound by it.
(5) Every deed, including a deed of appointment, executed before the commencement of this Act which is attested in the manner required or authorised by any enactment providing for the execution and attestation of deeds in force at the time of execution, or at any time subsequent to it, shall be deemed to be and to have been as valid and effectual as if it had been attested as required by this section.
5 Deed by corporation
Any deed that may be lawfully made by a corporation –
(a) To which the common or official seal of the corporation is affixed; or
(b) Which is executed in the name of the corporation by any person who has been appointed its attorney, and has at the time of execution made a statutory declaration that he is the attorney of the corporation acting under a power of attorney specified by him, and that he has executed the deed under the powers by it conferred, and that he has not at the time of making the declaration received any notice of the revocation of the power of attorney by the dissolution of the corporation or otherwise, shall be deemed to have been duly executed by the corporation, and shall bind the corporation; and all persons dealing in good faith without notice of any irregularity shall be entitled to presume the regular and proper execution of the deed, and to act accordingly.
6 Receipt for consideration money
An acknowledgement of the receipt of the consideration contained in the body of a deed shall be as valid and effectual in all respects as if the same had also been endorsed on it.
7 Person not named may take benefit
Any person may take an immediate benefit under a deed, although not named as a party to it.
8 Construction of supplemental or annexed deed
A deed expressed to be supplemental to a previous deed, or directed to be read as an annex to it, shall, as far as may be, be read and have effect as if the deed so expressed or directed were made by way of endorsement on the previous deed, or contained a full recital thereof.
9 Exercise of powers
Where a power of appointment by deed or writing, otherwise than by will, is exercised by deed executed in the manner required by this Act, the deed shall be deemed to be a valid exercise of the power, notwithstanding that by the instrument creating the power some additional or other form of execution is required.
10 Partitions, exchanges
No partition, exchange, lease, assignment, or surrender (otherwise than by operation of law) of any land shall be valid at law unless the same is made by deed, except a lease for a term not exceeding a tenancy of 1 year, which lease may be made either by writing or by parol.
11 Appointments
No appointment to be made by deed or writing (otherwise than by will) in exercise of a power shall be valid unless the same is executed as a deed is hereby required to be executed.
12 Disclaimers
No disclaimer of any land shall be valid unless the same is made by deed or by matter of record.
13 [Repealed by 2004/270]
PART 2
GENERAL RULES AFFECTING PROPERTY
14-23 [Repealed by 2004/270]
24-25 [Repealed]
26 [Repealed by 2004/270]
27 [Repealed by s 5 of the Simultaneous Deaths Act 1958]
28-30 [Repealed by 2004/270]
31 Release of part of land charged not to be extinguishment of rent
(1) The release from a rent of any part of the land out of which it is payable shall not be a discharge of the residue of the land from the rent.
(2) Where the owner of the part released is not the owner of the residue of the land charged with the rent, the owner of the residue shall be entitled to the same contribution from the owner of the part released as he would have been entitled to if no release had been made.
32 Corporations may hold as joint tenants
(1)
(a) A body corporate shall be capable of acquiring and holding any property in joint tenancy in the same manner as if it were an individual, and where a body corporate and an individual or 2 or more bodies corporate become entitled to any property under circumstances or by virtue of any instrument which would, if the body corporate had been an individual, have created a joint tenancy they shall be entitled to the property as joint tenants.
(b) The acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.
(2) Where a body corporate is a joint tenant of any property, then on its dissolution the property shall devolve on the other joint tenant.
33 Alienation of property may be restricted
(1) It shall be lawful by will, or by a settlement made on marriage, to provide that any estate or interest in any property comprised in the will or settlement devised, bequeathed, settled, or given to any beneficiary, whether male or female, shall not during the life of that beneficiary be alienated, or pass by bankruptcy, or be liable to be seized, sold, attached, or taken in execution by process of law.
(2) [Repealed 2/121/1971 (NZ)]
(3) Nothing in this section shall prevent any lawful restraint on alienation of property from being imposed by will or settlement.
(4) The Court may in any case where it appears to be for the benefit of the person subject to any restraint on alienation either wholly or partly remove the restraint.
33A Restrictions on ground of colour, race to be void
(1) Any provision in or in connection with any disposition of property (whether oral or in writing) made after the commencement of this section shall be void to the extent that its effect would be to prohibit or restrict the transfer, assignment, letting, subletting, charging, or parting with the possession of the property or any part of it, by any party to the disposition or his successor in title, to any person by reason only of the colour, race, or ethnic or natural origins of that person or of any member of his family.
(2) For the purposes of this section, "disposition" means –
(a) A sale, lease or letting, sublease or subletting, or licence; or
(b) A mortgage; or
(c) An agreement for any such disposition.
(3) This section shall bind the Crown.
34 Disclaimer of powers
(1) A person to whom is given any power, whether coupled with an interest or not, may by deed release or contract not to exercise the power.
(2) Any such person as aforesaid may by deed disclaim any such power, and after disclaimer shall not be capable of exercising or joining in the exercise of the power.
(3) On any such disclaimer the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.
35 Intermediate income of contingent or executory gifts
(1) A contingent or future specific or residuary devise or bequest of property, and a specific or residuary devise or bequest of property upon trust for a person whose interest is 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 the income or any part of it may be otherwise expressly disposed of.
(2) Where under an instrument other than a will property stands limited to a person for a contingent or future interest, or stands limited to trustees upon trust for a person whose interest is contingent or executory, that interest shall, subject to the statutory provisions relating to accumulations, carry the intermediate income of that property from the time when the instrument comes into operation, except so far as the income or any part of it may be otherwise expressly disposed of.
36 Receipts for income by married infants
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.
37 "Heirs" and other words interpreted
(1) Where under the terms of any instrument coming into operation after the commencement of this Act any property vests in –
(a) The heir or heirs of any person; or
(b) The next of kin of any person; or
(c) The next of kin of any person to be determined under the Administration Act 1969 –
the property shall vest in the persons who on the death of the person intestate would be beneficially entitled to his real and personal estate under the said last-mentioned Act, and in the same shares.
(2) This section applies only if and so far as a contrary or other intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions it contains.
38 "Heirs of the body" and other words interpreted
(1) Where under the terms of any instrument any property vests in –
(a) The heir or heirs of the body of any person; or
(b) The heir or heirs male of any person, or the heir or heirs male of the body of any person; or
(c) The heir or heirs female of any person, or the heir or heirs female of the body of any person, – the property shall vest as follows –
In case (a) in the issue of that person as tenants in common per stirpes; and
In case (b) in the sons and issue of sons of that person as tenants in common per stirpes; and
In case (c) in the daughters and the issue of daughters of that person as tenants in common per stirpes.
(2) This section applies only if and so far as a contrary or other intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions it contains.
39 [Repealed]
40 Appointments valid notwithstanding objects excluded
(1) An appointment in exercise of any power to appoint any property amongst several objects shall be valid and effectual notwithstanding that any 1 or more of the objects do not by the appointment or in default of appointment take a share or shares of the property.
(2) Nothing in this section shall prejudice or affect any provision in any instrument creating any power which declares the amount of the share or shares from which no object of the power shall be excluded, or some one or more object or objects shall not be excluded.
41-42 [Repealed]
PART 3
43-49 [Repealed by 2004/270]
PART 4
POWERS AND CONDITIONS OF SALE AND PROTECTION OF PURCHASERS AND CREDITORS
50-52 [Repealed by 2004/270]
53 [Repealed]
54-59 [Repealed by 2004/270]
60 Alienation with intent to defraud creditors
(1) Save as provided by this section, every alienation of property with intent to defraud creditors shall be voidable at the instance of the person prejudiced.
(2) This section does not affect the law of bankruptcy for the time being in force.
(3) This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having at the time of the alienation, notice of the intention to defraud creditors.
61-62 [Repealed by 2004/270]
PART 5
COVENANTS AND POWERS
63 Benefit of covenants relating to land
(1) A covenant, whether express or implied under this or any other Act, relating to any land of the covenantee shall, unless a contrary intention is expressed, be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and, subject as aforesaid, shall have effect as if those successors and other persons were expressed.
(2) For the purposes of this section in connection 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.
64 Burden of covenants relating to land
(1) A covenant, whether express or implied under this or any other Act, relating to any land of a covenantor or capable of being bound by him by covenant shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself and his successors in title and the persons deriving title under him or them, and, subject as aforesaid, shall have effect as if those successors and other persons were expressed.
(2) This section 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.
(3) For the purposes of this section in connection 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.
65 Effect of covenant with 2 or more jointly
(1) A covenant, whether express or implied under this or any other Act, and a contract by deed, and a bond or obligation by deed, made with 2 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 on whom devolves the right to sue on the covenant, contract, bond, or obligation.
(2) This section applies only to a covenant, contract, bond, or obligation made expressly or by implication on or after 1 January 1906 and then only in so far as a contrary intention is not expressed in the deed containing the covenant or contract, or in the bond or obligation, and shall have effect subject to its provisions.
66 Covenants and agreements made by a person with himself and others
A covenant, whether express or implied under this or any other Act, or an agreement made by a person with himself and another or others, shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been made with the other or others.
66A Covenants and agreements made by a person with himself
A covenant (whether express or implied under this or any other Act), or an agreement, made by a person with himself as an incident of or with respect to or for the purpose of any conveyance or mortgage of property under section 47, shall be capable of being enforced in like manner as if the covenant or agreement had been made by that person with another person.
67 Covenants to be joint and several
Where under a covenant, whether express or implied under this or any other Act, more persons than one are covenantors, the covenant shall, unless a contrary intention is expressed, be deemed to bind the covenantors and any 2 or greater number of them jointly and each of them severally.
68 Implied covenants may be negatived
(1) A covenant or power implied under this or any other Act shall have the same force and effect, and may be enforced in the same manner, as if it had been set out at length in the deed wherein it is implied.
(2) Any such covenant or power may be negatived, varied or extended in the deed, or by a memorandum in writing endorsed on it and executed as a deed is required to be executed by the parties to the deed intended to be bound by it.
69 Benefit of covenant for title
The benefit of a covenant for title implied under this or any other Act shall be annexed and incident to and shall go with the estate and interest of the implied covenantee, and may be enforced by any person in whom that estate or interest is, for the whole or any part of it vested.
70-71 [Repealed by 2004/270]
PART 6
COVENANTS IMPLIED IN CONVEYANCES
72 Covenants implied in conveyance by way of sale
(1) In every conveyance by way of sale, mortgage, marriage settlement, or lease and in every other conveyance for valuable consideration, there shall be implied (except as provided by section 75) the following covenants by the person or each of the persons who conveyans, so far as regards the estate or interest expressed to be conveyed by him, with the person to whom the conveyance is made, or with the person jointly to whom the conveyance is made as joint tenants or with each of the persons to whom the conveyance is made as tenants in common, that is to say –
(a) A covenant for right to convey, meaning a covenant that the conveying party has good right and full power to convey and assure the estate or interest purported to be conveyed, and that free and clear from all encumbrances other than such as are mentioned in the conveyance;
(b) A covenant for quiet enjoyment, meaning a covenant that the party to whom the estate or interest is purported to be conveyed, and all persons claiming under him, shall quietly enjoy the same without any disturbance by any person;
(c) A covenant for further assurance, meaning a covenant that the conveying party, his executors or administrators, and all other persons having or claiming any interest in the subject-matter of the conveyance, will, at the cost of the person requiring the same, do and execute all such acts and conveyances for the better assuring of the estate or interest purported to be conveyed by it as may be reasonably required by the party to whom the same is conveyed or any person claiming under him;
(d) A covenant for production of title deeds, meaning a covenant that the conveying party, his executors, administrators, or assigns, at the request and cost of the grantee, his executors, administrators or assigns, will, unless prevented by fire or other inevitable accident, produce to him or them, or as he or they may direct, within Niue all registered deeds and instruments or evidences of title in the possession of the conveying party, and relating to the land conveyed as well as to other land; and also that the conveying party, his executors, administrators, and assigns, will, unless prevented as aforesaid, keep the said deeds and instruments or evidences of title in the meantime safe, whole, and uncancelled. This covenant shall run with the land, so as to bind only the person for the time being entitled to the possession of the deeds, instruments, or evidences of title.
(2) The covenants for right to convey, for quiet enjoyment, and for further assurance shall, except in the case of a mortgage, be restricted to the acts, deeds and defaults of the conveying party, and of all persons through whom he derives title otherwise than by purchase for value, and of all persons claiming or to claim through, under, or in trust for him, or through or under any persons through whom he derives title as aforesaid.
(3) The costs of any further assurance or production of title deeds required by a mortgagee under the implied covenants in that behalf shall during the continuance of the mortgage be borne by the mortgagor.
(4) The covenant for quiet enjoyment shall not be implied against any mortgagor until default in payment of the principal moneys secured by the mortgage at the time fixed for the repayment of it, or in payment of interest on it, or until breach of any covenant by the mortgagor contained or implied in the mortgage; and until such default or breach as aforesaid it shall not be lawful for a mortgagee to enter into possession of the mortgaged land.
73 Covenants implied in conveyance subject to encumbrance
(1) In every conveyance by way of sale subject to an encumbrance there shall be implied a covenant by the person to whom the property is conveyed with the person making the conveyance to pay the moneys or perform the obligations secured by the encumbrance, and to perform ad observe the covenants and provisions of the encumbrance, and to keep harmless and indemnified the person making the conveyance in respect of all such moneys, obligations, covenants, and provisions.
(2) This section applies only in so far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the provisions of the conveyance.
74 Covenants implied in conveyance of term of years
In every conveyance of a term of years in land by way of sale or marriage settlement, and in every other conveyance of a term of years in land for valuable consideration, not being by way of mortgage, there shall be implied (except as provided by section 75) the following covenants by each conveying party severally, for himself, his executors and administrators, to the extent of the interest parted with by him, but restricted to the acts, deeds, and defaults of the conveying party, and of all persons through whom he derives title otherwise than by purchase for value, and of all persons claiming through, under, or in trust for him, them, or any of them, that is to say –
That the rent reserved by the lease under which the land is held, and the covenants and conditions expressed or implied in the lease and to be performed and observed by the lessee, have been respectively paid, performed, and observed up to the date of the conveyance.
75 Covenants implied in conveyance by trustees
(1) Where any person conveys as trustee or mortgagee, or as executor or administrator of a deceased person, or as manager of a mentally disordered person, when appointed or acting as manager of a mentally disordered person’s estate or where any person conveys under an order of the Court, or in a fiduciary capacity, the covenants set out in section 72(1)(a),(b) and (c) and in section 74 shall not be implied, but there shall be implied the following covenant on the part of the person conveying, which covenant shall be deemed to extend to his own acts only, namely –
That he has not executed or done, or knowingly suffered, or been party or privy to, any deed or thing whereby or by means whereof the subject-matter of the conveyance or any part of it is or may be impeached, charged, affected, or encumbered in title, estate, or otherwise, or whereby or by means whereof he is in any wise hindered from conveying the subject-matter of the conveyance or any part of it in the manner in which it is expressed to be conveyed.
(2) The covenant implied by this section shall be deemed to be implied in every memorandum of discharge endorsed on or annexed to a mortgage in the same manner as if the memorandum were a deed of conveyance by the mortgagee.
PART 7
76-104 [Repealed by 2004/270]
PART 8
LEASES AND TENANCIES
General Provisions
105 Tenancy from year to year not to be implied
No tenancy from year to year shall be created or implied by payment of rent; and if there is a tenancy it shall be deemed in the absence of proof to the contrary to be a tenancy determinable at the will of either of the parties by one month’s notice in writing.
106 Covenants implied in leases
In every lease of land there shall be implied the following covenants by the lessee, for himself, his executors, administrators, and assigns:
(a) That he or they will pay the rent thereby reserved at the time therein mentioned:
Provided that in case the demised premises or any part of it shall at any time during the continuance of the lease, without neglect or default of the lessee, be destroyed or damaged by fire, flood, lightning, storm, tempest or earthquake so as to render the same unfit for the occupation and use of the lessee, then and so often as the same shall happen, the rent thereby reserved, or a proportionate part of it, according to the nature and extent of the damage, shall abate, and all or any remedies for the recovery of the rent or the proportionate part of it shall be suspended until the demised premises shall have been rebuilt or made fit for the occupation and use of the lessee, and in the case of any dispute arising under this proviso the same shall be referred to arbitration under the Arbitration Act 1908:
(b) That he or they will, at all times during the continuance of the said lease, keep, and at the termination of it, yield up, the demised premises in good and tenantable repair, having regard to their condition at the commencement of the said lease, accidents and damage from fire, flood, lightning, storm, tempest, earthquake and fair wear and tear (all without neglect or default of the lessee) excepted.
107 Powers in lessor
In every lease of land there shall be implied the following powers in the lessor, his executors, administrators, or assigns:
(a) That he or they may, by himself or themselves, or his or their agents, at all reasonable times, enter upon the demised premises and view the state of repair of it, and may serve upon the lessee, his executors, administrators or assigns, a notice in writing of any defect, requiring him or them, within a reasonable time, to be prescribed in it, to repair the same under the covenant in that behalf contained or implied in the lease;
(b) That whenever the rent reserved is in arrear he or they may levy the same by distress;
(c) That whenever the rent or any part of it whether legally demanded or not, is in arrear for the space of 1 month, or whenever the lessee has failed to perform or observe any of the covenants, conditions or stipulations contained or implied in the lease, and on the part of the lessee to be performed or observed, he or they may re-enter the demised premises (or any part of it in the name of the whole) and thereby determine the estate of the lessee, his executors, administrators, or assigns in it, but without releasing him or them from liability in respect of the breach or non-observance of any such covenant, condition, or stipulation.
108 Effect of licence to assign
A condition or covenant not to assign or underlet or to do any other act without licence shall not be released or determined by any such licence.
109 No fine for licence to assign
(1) In all leases containing a covenant, condition, or agreement that the lessee shall not, without the licence or consent of the lessor, assign, underlet, part with the possession, or dispose of the demised premises or any part of it, that 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 any such licence or consent; but this proviso shall not preclude the right to require the payment of a reasonable sum in respect of any legal or other expenses incurred in relation to the licence or consent.
(2) Neither the assignment or under letting of any leasehold by the assignee of a bankrupt, or by the liquidator of a company, or by the Sheriff under an execution, nor the bequest of a leasehold, shall be deemed to be a breach of any such covenant, condition or agreement, unless the contrary is expressly declared in the lease.
(3) For the purposes of this section, terms defined in section 117 have the meanings assigned to them by that section.
110 Licence or consent not to be unreasonably withheld
(1) In all leases, whether made before or after the commencement of this Act, containing a covenant, condition, or agreement against assigning, under letting, charging, or parting with the possession of demised premises or any part of it without licence or consent, that covenant, condition, or agreement shall, notwithstanding any express provision to the contrary, be deemed to be subject to a proviso to the effect that the licence or consent is not to be unreasonably withheld, but this proviso does not preclude the right of the landlord to require payment of a reasonable sum in respect of any legal or other expenses incurred in connection with any such licence or consent. (1A) For the purposes of this section, a licence or consent shall be treated as unreasonably withheld if it is withheld by reason only of the colour, race, or ethnic or national origins of any person.
(2) In this section "lease" has the same meaning as in section 117.
111 Merger of reversion not to affect remedies
Where the reversion of land subject to a lease is merged in any remainder or other reversion, or future estate, the person entitled to the estate into which the reversion has merged and his executors or administrators, shall have the same remedy for non-performance or non-observance of the conditions or covenants expressed or implied in the lease as the person who would for the time being have been entitled to the mesne reversion so merged would have had.
112 Rent and benefit of lessee’s covenants to run with reversion
(1) Rent reserved by a lease, and the benefit of every covenant or provision in it 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 in it, shall be annexed and incident to and shall go with the reversionary estate in the land or in any part of it immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and may be recovered, received, enforced, and taken advantage of by the person entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. 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) The benefit of every condition of re-entry or forfeiture for a breach of any covenant or condition contained in a lease shall be capable of being enforced and taken advantage of by the person entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased, although that person became, by conveyance or otherwise, so entitled after the condition of re-entry or forfeiture had become enforceable.
(3) This section shall not render enforceable any condition of re-entry or other condition waived or released before that person became entitled as aforesaid.
113 Obligation of lessor’s covenants to run with reversion
The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, in so 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 of it, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is vested by conveyance, devolution in law, or otherwise; and, in so far as the lessor has power to bind the person entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled.
114 Apportionment of conditions on severance
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 in the lease, shall be apportioned and shall remain annexed to the several parts of the reversionary estate so severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land that has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had been the only land comprised in the lease.
115 Restriction on effect of waiver
Where any actual waiver of the benefit of any covenant or condition in any lease on the part of any lessor or his executors, administrators or assigns is proved to have taken place on or after 1 January 1906 in any one particular instance, that actual waiver shall not be deemed to extend to any instance or any breach of covenant or condition other than that to which the waiver specially relates, or to be a general waiver of any such covenant or condition, unless an intention to that effect appears.
116 Executor not personally liable for covenants
An executor or administrator shall not be personally liable on any covenant entered into by a testator or intestate as a lessee of land, any rule of law notwithstanding.
Relief Against Forfeiture
117 Interpretation
For the purposes of sections 118 and 119 –
"bankruptcy" does not include the voluntary winding up of any solvent company;
"lease" includes an original or derivative underlease, a grant securing a rent by condition, and an agreement for a lease where the lessee has become entitled to have his lease granted;
"lessee" includes an original or derivative underlessee, a grantee under any such grant as aforesaid, a person entitled under an agreement as aforesaid, and the executors, administrators, and assigns of a lessee;
"lessor" includes an original or derivative underlessor, a grantor as aforesaid, a person bound to grant a lease under an agreement as aforesaid, and the executors, administrators, and assigns of a lessor;
"underlease" includes an agreement for an underlease where the underlessee has become entitled to have his underlease granted;
"underlessee" includes any person deriving title through or from an underlessee.
118 Restrictions on and relief against forfeiture
(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant, condition, or agreement in the lease, shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable tie after it to remedy the breach, if it is capable of remedy, and to make reasonable compensation therefore in money to the satisfaction of the lessor.
(1A)
(a) Where the lease in respect of which such a notice has been served on the lessee has been mortgaged and the lessor has actual notice of the name and address of the mortgagee, he shall forthwith after serving the notice on the lessee serve a copy of the notice on the mortgagee.
(b) Failure to comply with this subsection shall not of itself prevent the exercise by the lessor of any right of re-entry or forfeiture under any proviso or stipulation in the lease.
(2) Where a lessor is proceeding by action or otherwise to enforce such a right of re-entry or forfeiture, or has re-entered without action, the lessee may, in the lessor’s action (if any), or in any action brought by himself, or by proceeding otherwise instituted, apply to the Court for relief; and the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the circumstances of the case, may grant or refuse relief as it thinks fit; and in case of relief may grant the same 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) Where any such relief as aforesaid is granted, the Court shall direct a minute or record of it to be made on the lease or otherwise.
(4) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act.
(5) For the purposes of this section a lease limited to continue so long as the lessee abstains from committing a breach of any covenant, condition, or agreement shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach.
(6) This section does not extend to a condition for forfeiture on the taking in execution of the lessee’s interest.
(7) Except in a case where the lessee is bankrupt this section shall not affect the law relating to re-entry or forfeiture in case of non-payment of rent.
(8) This section shall have effect notwithstanding any stipulation to the contrary.
119 Protection of underlessees on forfeiture of superior leases
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, the Court may, on application by any person claiming as underlessee any estate or interest in the property comprised in the lease, or any part of it either in the lessor’s action (if any) or in any action brought by that 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 of it in any person entitled as underlessee to any estate or interest in that property, upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, the giving of security, or otherwise as the Court in the circumstances of each case thinks 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 underlease.
Relief Against Refusal to Grant Renewal
120 Relief of lessee against refusal or lessor to grant a renewal or to assure the reversion
(1) In this section, "lease", "lessee", and "lessor" have the same meanings as in section 117.
(2) This section applies to leases made and shall have effect with respect to any lease notwithstanding any stipulation to the contrary and notwithstanding the expiry of the term of the lease.
(3) Where –
(a) By any lease to which this section applies the lessor has covenanted or agreed with the lessee that, subject to the performance or fulfilment of certain covenants, conditions, or agreements by the lessee, the lessor will –
(i) on the expiry of the lease grant to the lessee a renewal of the lease or a new lease of the demised premises; or
(ii) whether upon the expiry of the lease or at any time previous to it assure to the lessee that lessor’s reversion expectant on the lease; and
(b) The lessor has refused to grant that renewal or that new lease or to assure that reversion, as the case may be, on the ground that the lessee has failed to perform or fulfil the said covenants, conditions, and agreements, or any of them –
the lessee may in any action or by proceeding otherwise instituted, apply to the Court for relief.
(4) The Court, having regard to all the circumstances of the case, may grant or refuse relief as it thinks fit, and in particular may decree, order, or adjudge –
(a) That the lessor shall grant to the lessee a renewal of his lease or a new lease, as the case may require; or
(b) That the lessor’s covenant or agreement to assure the reversion ought to be specifically performed and carried into execution, and that the lessor shall execute such assurances as the Court thinks proper for that purpose – on the same terms and conditions in all respects as if all the covenants, conditions, and agreements aforesaid had been duly performed and fulfilled.
(5) The Court may grant relief on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise as the Court in the circumstances of each case thinks fit.
(6) Failure by the lessee to give to the lessor notice of his intention to require or to accept a renewal of a lease or a new lease or an assurance of the lessor’s reversion, as the case may be, within the time or in the manner, if any, prescribed by the original lease shall not limit the rights of the lessee or the powers of the Court under this section.
(7) The fact that the lessor may have granted any estate or interest in the demised land to any person other than the lessee, which estate or interest would be defeated or prejudicially affected by the grant of relief to the lessee, shall not affect the power of the Court under this section, but in any such case the Court may, if it thinks just, grant relief to the lessee and cancel or postpone any such estate or interest and may, if it thinks fit, assess damages or compensation to be paid to that person in respect of the defeat of or prejudicial effect upon the estate or interest. Any damages or compensation to be paid under this subsection shall as the Court may determine be payable either by the lessor or by the lessee, or partly by the lessor and partly by the lessee in proportions to be fixed by the Court.
121 Limitation of time for application for relief
(1) Application for relief under section 120 may be made at any time within 3 months after the refusal of the lessor to grant a renewal of the lease or to grant a new lease or to assure the reversion, as the case may be, has been first communicated to the lessee.
(2) For the purposes of the subsection (1), communication to the lessee of notice in writing of the lessor’s intention to refuse at the appropriate time to grant a renewal of a lease or to grant a new lease or to assure the reversion shall be deemed to be equivalent to communication of his refusal to grant the renewal or new lease or to assure the reversion, and in any case where notice of intention is so given the period of limitation fixed by subsection (1) shall begin to run from the date of the communication of the notice accordingly.
PART 9
EASEMENTS, RESTRICTIVE STIPULATIONS AND ENCROACHMENTS
122 Easement in gross permitted
An easement over land may be created without being attached or made appurtenant to other land, and such an easement shall run with and bind the land over which it is created, and all persons claiming title to that land by, through, or under the person creating the easement; and the easement so created shall be to all intents and purposes an incorporeal hereditament, and shall be assignable accordingly.
123 Access or use of light or air
Except as herein provided, no tenement shall become servient to any other in respect of the access of either light or air, and no person shall have or acquire by prescription, grant, or otherwise any claim or right to the access of light or air to any land or building from or over the land of any other person.
124-126 [Repealed by 2004/270]
127 Power for Court to modify or extinguish easements and restrictive stipulations
(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of it, the Court may on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied –
(a) That by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement or restriction ought to be deemed obsolete, or that the continued existence of it would impede the reasonable use of the land subject to the easement or restriction without securing practical benefit to the persons entitled to the easement or to the benefit of the restriction, or would, unless modified, so impede any such user; or
(b) That the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed, have agreed to the easement or restriction being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part; or
(c) That the proposed modification or extinguishment will not substantially injure the persons entitled to the benefit of that restriction.
(2) Where any proceedings by action or otherwise are instituted to enforce an easement or restriction, or to enforce any rights arising out of a breach of any restriction, any person against whom the proceedings are instituted may in those proceedings apply to the Court for an order under the section.
(3) The Court may on the application of any person interested make an order declaring whether or not in any particular case any land is affected by an easement or restriction and the nature and extent of it, and whether the same is enforceable, and, if so, by whom.
(4) [Repealed by 2004/270]
(5) An order under this section shall, when registered as in this section provided, be binding on all persons, whether of full age or capacity or not, then entitled or thereafter becoming entitled to the easement, or interested in enforcing the restriction, and whether those persons are parties to the proceedings or have been served with notice or not.
(6) –
(7) [Repealed by 2004/270]
(8) In the case of other land a memorandum of the order shall be endorsed on such of the instruments of title as the Court directs.
128 Commissioner may authorise entry for erecting or repairing buildings
(1) The owner of any land may at any time apply to a Commissioner for an order authorising him, or any person authorised by him in writing on that behalf, to enter upon any adjoining land for the purpose of erecting, repairing, adding to, or painting the whole or any part of any building, wall, fence, or other structure on the applicant’s land, and to do on the land so entered upon such things as may reasonably be considered necessary for any such purpose as aforesaid.
(2) On any such application the Commissioner may make such an order as the Commissioner thinks fit, and may make such order subject to such terms and conditions as are thought fit.
129 Power of Court to grant special relief in cases of encroachment
(1) Where any building on any land encroaches on any part of any adjoining land (that part being referred to in this section as the piece of land encroached upon), whether the building was erected by the owner of the first-mentioned land (in this section referred to as the encroaching owner) or by any of his predecessors in title, either the encroaching owner or the owner of the piece of land encroached upon may apply to the Court, whether in any action or proceeding then pending or in progress and relating to the piece of land encroached upon or by an originating application, to make an order under this section in respect of that piece of land.
(2) If it is proved to the satisfaction of the Court that the encroachment was not intentional and did not arise from gross negligence, or, where the building was not erected by the encroaching owner, if in the opinion of the Court it is just and equitable in the circumstances that relief should be granted to the encroaching owner or any other person, the Court, without ordering the encroaching owner or any other person to give up possession of the piece of land encroached upon or to pay damages, and without granting an injunction, may make an order –
(a) Vesting in the encroaching owner or any other person any estate or interest in the piece of land encroached upon; or
(b) Creating in favour of the encroaching owner or any other person any easement over the piece of land encroached upon; or
(c) Giving the encroaching owner or any other person the right to retain possession of the piece of land encroached upon.
(3) Where the Court makes any order under this section, the Court may, in the order, declare any estate or interest so vested to be free from any mortgage or other encumbrance affecting the piece of land encroached upon, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease, or contract affecting or relating to that piece of land.
(4) Any order under this section, or any provision of any such order, may be made upon and subject to such terms and conditions as the Court thinks fit, whether as to the payment by the encroaching owner or any other person of any sum or sums of money, or the execution by the encroaching owner or any other person of any mortgage, lease, easement, contract or other instrument, or otherwise.
(5) Every person having any estate or interest in the piece of land encroached upon or in the adjoining land of the encroaching owner, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, contract, or easement affecting or relating to any such land, shall be entitled to apply for an order under this section, or to be heard in relation to any application for or proposal to make any order under this section. For the purposes of this subsection the Court may, if in its opinion notice of the application or proposal should be given to any such person as aforesaid, direct that such notice as it thinks fit shall be given to that person by the encroaching owner or any other person.
129A Relief in cases of mistake as to boundaries or identity of land
(1) Where any person who has or had an estate or interest in any piece of land (in this section referred to as the original piece of land) has, while he had that estate or interest, erected a building on any other piece of land (that other piece together with any land reasonably required as curtilage and for access to the building being in this section referred to as the piece of land wrongly built upon), if the building has been so erected because of a mistake as to any boundary or as to the identity of the original piece of land, that person, or any other person for the time being in possession of the building or having an estate or interest in either the original piece of land or the piece of land wrongly built upon, or any other person mentioned in subsection (6) may apply to the Court, whether in any action or proceeding then pending or in progress and relating to the piece of land wrongly built upon or by an originating application, to make an order under this section.
(2) If in the opinion of the Court it is just and equitable in the circumstances that relief should be granted to the applicant or any other person, the Court may make an order –
(a) Vesting that piece of land wrongly built upon in the person or persons specified in the order;
(b) Allowing any person or persons specified in the order to remove the building and any chattels and fixtures or any of them from the piece of land wrongly built upon;
(c) Where it allows possession of the building to any person or persons having an estate or interest in the piece of land wrongly built upon, requiring all or any of the persons having an estate or interest in that piece of land to pay compensation in respect of the building and other improvements to the piece of land wrongly built upon to such person or persons as the Court may specify;
(d) Giving the person who erected the building or any person or persons claiming through him the right to possession of the piece of land wrongly built upon for such period and on such terms and conditions as the Court may specify.
(3) Where appropriate, the Court may make any such order without ordering the applicant or any other person to give up possession of the piece of land wrongly built upon, or to pay damages and without granting an injunction.
(4) Where the Court makes any order under this section, the Court may, in the order, declare any estate or interest in the piece of land wrongly built upon to be free from any mortgage, lease, easement, or other encumbrance affecting that piece of land, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease, easement, contract, or other instrument affecting or relating to that piece of land.
(5) Any order under this section, or any provision of any such order, may be made upon and subject to such terms and conditions as the Court thinks fit, whether as to the payment by any person of any sum or sums of money, or the execution by any person of any mortgage, lease, easement, contract, or other instrument or otherwise.
(6) [Repealed by 2004/270]
(7) [Repealed by 2004/270]
(8) [Repealed 101/51/1971 (NZ)]
(9) Nothing in this section shall restrict the operation of section 129.
PART 10
ASSIGNMENTS OF THINGS IN ACTION
130 Assignment of debts and things in action
(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal or equitable 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 receive or claim that debt or thing in action, shall be and be deemed to have been effectual in law (subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not been passed) to pass and transfer the legal or equitable right to that debt or thing in action from the date of the notice, and all legal or equitable and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor.
(2) Where the debtor, trustee, or other person liable in respect of any such debt or thing in action has had notice that the assignment is disputed by the assignor or any one claiming under him, or that there are other opposing or conflicting claims to that debt or thing in action, he shall be entitled, if he thinks fit, to call upon the several persons making claim to it to interplead concerning the same; or he may, if he thinks fit, pay the same into the Court, under and in conformity with the provisions of the Acts for the relief of trustees.
PART 11
MARRIAGE SETTLEMENTS
131-132 [Repealed by 2004/270]
133 Sanction of Court to be obtained
(1) Every minor in contemplation of his marriage may, with the sanction of the Court, given on the application of the minor or his guardian, make a valid and binding settlement or contract for a settlement of all or any part of his property, or property over which he has a power of appointment whether in possession, reversion, remainder or expectancy.
(2) Every conveyance, appointment and assignment of any such property, and every contract to make a conveyance of it, appointment, or assignment of it executed by the minor with the sanction of the Court for the purpose of giving relief to the settlement shall be as valid and effectual as if the minor were of full age.
(3) Where there is no guardian the Court may require a guardian to be appointed, and may also require that any persons interested or appearing to be interested in the property be served with notice of the application to the Court for its sanction.
(4) Where any appointment under a power of appointment or any disentailing assurance, has been executed under this section by any minor as tenant in tail, and afterwards that minor dies under age, the appointment or disentailing assurance shall thereupon become absolutely void.
(5) [Repealed]
(6) The authority conferred by this section shall not extend to powers of which it is expressly declared that they shall not be exercised by a minor.
PART 12
POWERS OF ATTORNEY
134 Execution by attorney in his own name
(1) The donee of a power of attorney may execute or do any assurance instrument, or thing in and with his own name and signature and his own seal (where sealing is required) by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law to all intents as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor of it.
(2) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.
135 Continuance until notice of death or revocation received
(1) Subject to any stipulation to the contrary contained in the instrument creating a power of attorney, the power shall, so far as concerns any act or thing done or suffered thereunder in good faith, operate and continue in force until notice of the death of the donor of the power or until notice of other revocation of it has been received by the donee of the power.
(2) Every act or thing within the scope of the power done or suffered in good faith by the donee of the power after such death or other revocation as aforesaid, and before notice of it has been received by him, shall be as effectual in all respects as if that death or other revocation had not happened or been made.
(3) A statutory declaration by any such attorney to the effect that he has not received any notice or information of the revocation of the power of attorney by death or otherwise shall, if made immediately before or if made after any such act as aforesaid, be taken to be conclusive proof of the no-revocation at the time when the act was done or suffered in favour of all persons dealing with the donee of the power in good faith and for valuable consideration without notice of the said death or other revocation.
(4) Where the donee of the power is a corporation aggregate the statutory declaration shall be sufficient if made by any director, manager, or secretary of the corporation or by any officer of it discharging the functions usually appertaining to any of those offices or by any officer of the corporation appointed for that purpose either generally or in the particular instance by the board of directors, council, or other governing body by resolution or otherwise, and if it is to the effect that to the best of the declarant’s knowledge and belief neither the attorney nor any servant or agent of the attorney has received any such notice or information as is mentioned in subsection (3); and where the declaration contains a statement that the declarant is a director, manager, or secretary of the corporation or is an officer of the corporation discharging the functions usually appertaining to any of those offices or is an officer of the corporation appointed for the purpose of making the declaration, the statement shall be conclusive evidence in favour of the persons mentioned in that subsection.
(5) This section applies to powers of attorney executed in or out of Niue.
136 Irrevocable power of attorney for value
Where a power of attorney given for valuable consideration (whether executed in or out of Niue) is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser –
(a) The power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee, or by the death, mental deficiency, or bankruptcy of the donor; and
(b) Any act done at any time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, mental deficiency, or bankruptcy of the donor, had not been done or had not happened; and
(c) Neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor without the concurrence of the donee, or of the death, mental deficiency, or bankruptcy of the donor.
137 Power of attorney made irrevocable for fixed time
Where a power of attorney (whether executed in or out of Niue, and whether given for valuable consideration or not) is in the instrument creating the power expressed to be irrevocable for a fixed time in it specified, not exceeding 1 year from the date of the instrument, then, in favour of a purchaser —
(a) The power shall not be revoked for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee, or by the death, mental deficiency, or bankruptcy of the donor; and
(b) Any act done within that fixed time by the donee of the power in pursuance of the power shall be as valid as if anything done by the donor without the concurrence of the donee, or the death, mental deficiency, or bankruptcy of the donor had not been done or had not happened; and
(c) Neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice, either during or after that fixed time, of anything done by the donor during that fixed time without the concurrence of the donee, or of the death, mental deficiency, or bankruptcy of the donor within that fixed time.
138 Conveyance under power of attorney from person not in Niue
No person shall be entitled to object to the execution or proposed execution of conveyance solely on the ground that the execution is under a power of attorney from a person not in Niue.
139 Application to corporations
The provisions of this Part apply with the necessary modifications with respect to any power of attorney executed by any corporation to the same extent as if the corporation were a person and the dissolution of the corporation (however occurring) were the death of a person within the meaning of this Part.
PART 13
PARTITION OF LAND AND DIVISION OF CHATTELS
140 In action for partition Court may direct land to be sold
(1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
(2) The Court may on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the Court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3) The Court may also if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale; and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
(4) On directing any such sale or valuation to be made, the Court may give also all necessary or proper consequential directions.
(5)
(a) Any person may maintain such action as aforesaid against any one or more of the parties interested without serving the other or others, and it shall not be competent to any defendant in the action to object for want of parties; and at the hearing of the cause the Court may direct such inquiries as to the nature of the land and the persons interested therein, and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration.
(b) All persons who, if this Act had not been passed, would have been necessary parties to the action shall be served with notice of the decree or order on the hearing, and, after the notice, shall be bound by the proceedings as if they had originally been parties to the action, and shall be deemed parties to the action; and all such persons may have liberty to attend the proceedings, and any such person may, within a time limited by rules of Court, apply to the Court to add to the decree or order.
(6) On any sale under this section the Court may allow any of the parties interested in the land to bid at the sale, on such terms as the Court deems reasonable as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part of it instead of paying the same, or as to any other matters.
141 Proceeds of sale, how applied
(1) All money received under any such sale may if the Court thinks fit be paid to trustees appointed by the Court, and applied, as the Court directs –
(a) In the discharge of any encumbrance affecting the land directed to be sold; and, subject to it
(b) In the payment of the residue to the parties interested.
(2) Where the Court so directs, the trustees (if any) may in their discretion apply the money in manner aforesaid; and where no such direction is given any party interested may apply to the Court for an order that the money be so applied.
(3) Until the money can be applied as aforesaid, it shall be invested in such securities as the Court may approve, and the interest and dividends of it shall be paid to the parties interested.
142 Costs in partition suits
In any action for partition the Court may make such order as it thinks just respecting costs up to the time of the hearing.
143 Division of chattels
Where any chattels belong to persons jointly or in undivided shares, the persons interested to the extent of a moiety or upwards may apply to the Court for an order for division of the chattels or of any of them, according to a valuationor otherwise, and the Court may make such order and give such consequential directions as the Court thinks fit.
PART 14
APPORTIONMENT
144 Interpretation
In this Part –
"annuities" includes salaries and pensions;
"dividends" includes (besides dividends strictly so called) all payments made by the name of dividend bonus, or otherwise out of the revenue of trading or other companies or corporations, divisible between all or any of the members of it, whether those payments are usually made or declared at any fixed time or otherwise; and all such divisible revenue shall for the purposes of this section be deemed to have accrued by equal daily increments during and within the period for or in respect of which the payment of the same revenue is declared or expressed to be made but
"dividends" does not include payments in the nature of a return or reimbursement of capital;
"rent" includes rents and all periodical payments or renderings in lieu of or in the nature of rent.
145 Income apportionable in respect of time
All rents, annuities, dividends and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly.
146 Time when apportioned part payable
The apportioned part of any such rent, annuity, dividend, or other payment shall be payable or recoverable in the case of a continuing rent, annuity, or other payment as soon as the entire portion of which the apportioned part forms part becomes due and payable, and not before; and where the payment is determined by re-entry, death, or otherwise, as soon as the next entire portion of the same would have become payable if the same had not so determined, and not before.
147 Recovery of apportioned parts
(1) All persons and their respective executors, administrators, and assigns and also the executors, administrators, and assigns respectively of persons whose interests determined with their own death, shall have such or the same remedies, legal and equitable, for recovering such apportioned parts as aforesaid when payable (allowing for a proportionate part of all just allowance) as they respectively would have had for recovering such entire portions as aforesaid if entitled to it respectively.
(2) Where any person is liable to pay rent reserved out of or charged on lands or other hereditaments of any tenure, that person and the said lands or other hereditaments shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid; but the entire or continuing rent, including the apportioned part, shall be recovered and received by the person who, if the rent had not been apportionable under this Part or otherwise, would have been entitled to the entire or continuing rent; and the apportioned part shall be recoverable from the last-mentioned person by the executors, administrators or other parties entitled under this Part.
148 Exceptions and application
(1) Nothing in this Part shall render apportionable any annual sums payable under policies of assurance of any description.
(2) This Part does not extend to any case in which it is expressly stipulated that apportionment shall not take place.
PART 15
149 [Repealed by 2004/270]
PART 16
RENT CHARGES AND OTHER ANNUAL SUMS
150 Recovery of annual sums charged on land
(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 rent charge or otherwise, not being rent incident to a reversion, then, subject and without prejudice to all estates, interests, and rights having priority to that annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, so far as those remedies might have been conferred by the instrument under which the annual sum is payable, but not further.
(2) If at any time the annual sum, or any part of it, is unpaid for 21 days next after the time appointed for any payment in respect of it, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part of it, and dispose of it according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears of it, and all costs and expenses occasioned by non-payment of it may be fully paid.
(3) If at any time the annual sum or any part of it is unpaid for 40 days next after the time appointed for any payment in respect of it, then, although no legal demand for that payment has been made, the person entitled to receive the annual sum may enter into possession of and hold the land charged, or any part of it and take the income of it until thereby or otherwise the annual sum, and all arrears of it due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid; and the possession when taken shall be without impeachment of waste.
(4) In the like case the person entitled to the annual charge, whether taking possession or not, may also by deed convey the land charged, or any part of it to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise for all or any part of the term, of the land charged, or of any part of it, or by receipt of the income of it, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears of it due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment of it, or otherwise relating to it, including the costs of the preparation and execution of the deed of demise, and the cost of the execution of the trusts of that deed; and the surplus, if any, of the money raised or of the income received under the trusts of that 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.
(5) This section applies only where the instrument under which the annual sum is payable comes into operation on or after 1 January 1906, and then only in so far as a contrary intention is not expressed in the instrument and shall have effect, subject to the terms and provisions of it.
(6) The rule of law relating to perpetuities shall not apply to any powers or remedies conferred by this section, nor to the same, or like powers or remedies conferred by any instrument for recovering or compelling the payment of any annual sum within the meaning of this section.
151 [Repealed by 2004/270]
PART 17
SERVICE OF NOTICES
152 Service of notices
(1)
(a) Any notice required or authorised by this Act to be served on any person shall be delivered to that person, and may be delivered to him either personally or by posting it by registered letter addressed to that person at his last known place of abode or business in Niue.
(b) A notice so posted shall be deemed to have been served at the time when the registered letter would in the ordinary course of post be delivered.
(2) If the person is absent from Niue, the notice may be delivered as aforesaid to his agent in Niue. If he is deceased, the notice may be delivered as aforesaid to his personal representative.
(3) If the person is now known, or is absent from Niue and has no known agent in Niue, or is deceased and has no personal representative, the notice shall be delivered in such manner as may be directed by an order of the Court.
(4) Notwithstanding anything in subsections (1) to (3) the Court may in any case make an order directing the manner in which any notice is to be delivered, or dispensing with the delivery of it.
(5) This section does not apply to notices served in proceedings of the Court.
PART 18
MISCELLANEOUS
153 [Repealed by 2004/270]
154 Protection of solicitors and trustees
(1) It is hereby declared that the powers given by this Act to any person, and the covenants, provisions, stipulations and words which under this Act are to be deemed 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 connection 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 connection 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 of it, in any case where the provisions of this Act would allow of his doing so.
(2) But nothing in this Act shall be taken to imply that the insertion in any such instrument, or the adoption in connection 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 capacity, those persons shall also be protected in like manner.
(4) Where such persons as aforesaid are acting without a solicitor they shall also be protected in like manner.
155 [Spent]
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URL: http://www.paclii.org/nu/legis/consol_act/pla1952179