Property Law Act 1952

1: Short Title and commencement
This Act may be cited as the Property Law Act 1952, and shall come into force on the 1st day of January 1953.
2: Interpretation
In this Act, unless the context otherwise requires,— Bankruptcy Part 6 bankrupt Conveyance convey Court High Court Court, Registrar: The words High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979 Deed Land Transfer Act 1952 Encumbrance encumbrancer Executors administrators executors Income Instrument Land Land under the Land Transfer Act 1952 Mortgage mortgage money Mortgage mortgagee mortgagor Land Transfer Act 1952 Mortgagee mortgagee in possession Mortgagor Possession Property Purchaser purchase sale Registered duly registered Land Transfer Act 1952 Deeds Registration Act 1908 registration Registrar High Court Court, Registrar: The words High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979 Rent fine Will 1908 No 152 s 2 Section 2 bankruptcy amended 3 December 2007 section 445 Insolvency Act 2006 Bankruptcy: the reference to Part 17 of the Insolvency Act 1967 (1967 No 54) was substituted 1 January 1971 171(1) Insolvency Act 1967
3: Application to Land Transfer land
1: This Act shall be read and construed so as not to conflict with the provisions of the Land Transfer Act 1952
2: Except as otherwise expressly provided, all the provisions of this Act shall, as far as they are applicable, apply to land and instruments under the Land Transfer Act 1952
3: The provisions of this Act which are specified in Schedule 1 Land Transfer Act 1952 1908 No 152 s 1(4)
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 thereby, and shall also be attested by at least one witness, and, if the deed is executed in New Zealand, 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 thereby.
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 thereto, shall be deemed to be and to have been as valid and effectual as if it had been attested as required by this section. 1908 No 152 s 26
5: Deed by corporation
1: Any deed that may be lawfully made by a corporation (whether executed before or after the commencement of this Act)—
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 on which is endorsed or to which is attached a certificate by that person to the effect giving the certificate 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.
2: Every person commits an offence and is liable on summary conviction to a fine not exceeding $100 who wilfully or negligently signs any certificate for the purposes of this section if the certificate is false in a material respect.
3: Nothing in subsection (1)(a) Companies Act 1955
4: Nothing in subsection (1)(a) Building Societies Act 1965
5: Nothing in subsection (1)(a) Companies Act 1993 1908 No 152 s 27 Subsection (1)(b) amended 9 December 1976 Property Law Amendment Act 1976 by substituting the words and on which is endorsed or to which is attached a certificate by that person to the effect and has at the time of execution made a statutory declaration Subsection (1)(b) amended 9 December 1976 Property Law Amendment Act 1976 by substituting the words and giving the certificate making the declaration Subsection (2) inserted 9 December 1976 Property Law Amendment Act 1976 Subsection (3) inserted Companies Amendment Act 1985 Subsection (4) inserted 1 September 1987 43(1) Building Societies Amendment Act 1987 Subsection (5) inserted 1 July 1994 Property Law Amendment Act 1993
6: Receipt for consideration money
An acknowledgment 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 thereon. 1908 No 152 s 28
7: Person not named may take benefit
Section 7 repealed 1 April 1982 13 Contracts (Privity) Act 1982
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 thereto, 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. 1908 No 152 s 45
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. 1908 No 152 s 33
10: Partitions, exchanges, etc
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 one year, which lease may be made either by writing or by parol. 1908 No 152 s 34
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. 1908 No 152 s 35
12: Disclaimers
No disclaimer of any land shall be valid unless the same is made by deed or by matter of record. 1908 No 152 s 36
13: Construction of word
month
1: In all deeds, contracts, wills, orders, and other instruments executed or made on or after the 5th day of December 1944 (being the date of the passing of the Law Reform Act 1944 month
2: This section shall bind the Crown. 1944 No 18 4 1950 No 54 5(2)
2: General rules affecting property
14: Uses not necessary
Every limitation which at any time heretofore might have been made by way of shifting, springing, or executory use may be made by direct conveyance without the intervention of uses. 1908 No 152 s 41
15: Certain forms of assurance abolished
The legal estate in any land shall not pass by a covenant to stand seised, or by any contract for the sale and purchase of land, or by livery of seisin. 1908 No 152 s 42
16: Estates tail abolished
1: In any instrument coming into operation after the commencement of this Act, a limitation which, if this section had not been passed, would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable, as the case may be) in that land in favour of that person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail.
2: Where at the commencement of this Act any person is entitled to an estate tail (legal or equitable), whether in possession, reversion, or remainder, in any land, that person, save as hereinafter mentioned, shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in that land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail.
3: In subsection (2) estate tail
4: Every District Land Registrar is hereby authorised to make all such entries in the register book as may be necessary to give effect to this section. 1908 No 152 s 114
17: Estates by wrong abolished
No conveyance shall create any estate by wrong, or work a forfeiture. 1908 No 152 s 43
18: Freehold
in futuro An estate of freehold to take effect at a future time may be created by any deed by which a present estate of freehold may be created. 1908 No 152 s 4
19: Estate in chattel real may be created by deed
Any estate or interest that can be created by will in any chattel real may also be created by deed. 1908 No 152 s 5
20: When contingent remainders capable of taking effect
1: A contingent remainder shall be capable of taking effect notwithstanding the destruction or determination by any means of the particular estate immediately preceding, and notwithstanding that it may have been created expectant on the termination of a term of years.
2: A contingent remainder or a contingent interest lying between 2 estates vested in the same person shall prevent the merger of those 2 estates. 1908 No 152 s 6
21: Rights of entry, etc
Every right of entry, contingent remainder, and every contingent or executory or future estate, right, or interest in property, may be conveyed by deed: Provided that no person shall be empowered by this Act to dispose of any expectancy he may have as next of kin, or under the Administration Act 1969 1908 No 152 s 37 The reference to the Administration Act in the proviso was substituted 1 January 1971 84(1) Administration Act 1969
22: Certain expressions to be words of purchase; rule in Shelley's case abolished
1: Where by any instrument an interest in any property is expressed to be given to the heir or heirs or to any particular heir or any class of the heirs or issue of any person in words which but for this section or section 16
2: Whereas section 7 of the Property Law Act 1908 Where a deed or will contains a limitation to any person for life, followed mediately or immediately by a limitation to the heirs or the heirs of the body of such person, the latter limitation shall not be deemed to coalesce with the former, but shall take effect as a contingent remainder Now, therefore, to prevent doubt being made as to the effect of the said section, it is hereby declared that the said section in its true meaning and effect extended at all times until the repeal thereof to establish the law as expressed in subsection (1) 1908 No 152 s 7
23: Restriction on executory limitations
1: Where there is a person entitled to land for an estate in fee, or for a term of years absolute, or determinable on life, or for term of life, with an executory limitation over on default or failure of all or any of his issue, whether within or at any specified period or time or not, that executory limitation shall be or become void and incapable of taking effect if and as soon as there is living any issue that has attained the age of 20
2: This section applies only where the executory limitation is contained in an instrument coming into operation on or after the 1st day of January 1906 (being the date of the commencement of the Property Law Act 1905 1908 No 152 s 14 Subsection (1) amended 1 January 1971 6 Age of Majority Act 1970 by substituting the expression 20 21
24: Section 24 repealed 11 November 1964 19(2) Perpetuities Act 1964
25: Section 25 repealed 11 November 1964 9(6) Perpetuities Act 1964
26: Possibility upon a possibility
1: The rule of law prohibiting the limitation, after a life interest to an unborn person, of an interest in land to the unborn child or other issue of an unborn person is abolished, but without prejudice to any other rule relating to perpetuities.
2: Whereas section 8 of the Property Law Act 1908 No estate shall be void on account of its being made to depend on a possibility upon a possibility Now, therefore, to prevent doubt being made as to the effect of the said section, it is hereby declared that the said section in its true meaning and effect extended at all times until the repeal thereof to establish the law as expressed in subsection (1) 1908 No 152 s 8
27: Section 27 repealed 25 September 1958 5 Simultaneous Deaths Act 1958
28: Vendor's lien taken away
No vendor of any land shall have any equitable lien thereon by reason of the non-payment of the purchase money or any part of the purchase money for the same. 1908 No 152 s 9
29: Equitable waste
An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer that right expressly appears by the instrument creating that estate. 1908 No 152 s 10
30: No merger by operation of law
There shall not be any merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity. 1908 No 152 s 11
31: Release of part of land charged not to be extinguishment of rent
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: Provided that, 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. 1908 No 152 s 12
32: Corporations may hold as joint tenants
1: 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: Provided that 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. 1908 No 152 s 20
33: Section 33 repealed 18 October 1983 2(1) Property Law Amendment Act 1983
33A: Restrictions on ground of colour, race, etc, 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 thereof, by any party to the disposition or his successor in title, to any person by reason only of the colour, race, or ethnic or national origins of that person or of any member of his family.
2: For the purposes of this section, the term disposition
a: A sale, lease or letting, sublease or subletting, or licence; or
b: A mortgage; or
c: An agreement for any such disposition as aforesaid.
3: This section shall bind the Crown. Section 33A inserted 10 September 1965 Property Law Amendment Act 1965
33B: Restrictions requiring sterility
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 require any party to the disposition, or any of his successors in title, or the spouse of any such party or successor, to be or to undertake to become sterile.
2: For the purposes of this section, the term disposition section 33A
3: This section shall bind the Crown. Section 33B inserted 16 December 1977 Property Law Amendment Act 1977
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.
4: This section applies to powers created by instruments coming into operation either before or after the commencement of this Act. 1908 No 152 s 25
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 thereof 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 thereof may be otherwise expressly disposed of.
3: This section applies only to wills and instruments coming into operation after the commencement of this Act.
36: Receipts for income by married infants
1: 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.
2: This section applies only to receipts given after the commencement of this Act.
37: Heirs
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 in accordance with 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.
1A: If the instrument was executed before 1 February 2002, subsection (1) section 8 Administration Amendment Act 2001
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 therein contained. The reference to the Administration Act in subsection (1) was substituted 1 January 1971 84(1) Administration Act 1969 Subsection (1A) inserted 1 February 2002 12(1) Administration Amendment Act 2001
38: Heirs of the body
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 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) per stirpes In case (b) per stirpes In case (c) 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 therein contained.
39: Section 39 repealed 27 October 1955 13(3) Wills Amendment Act 1955
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 one 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. 1908 No 152 s 30
40A: Property agreements between persons cohabiting as husband and wife
No agreement between a man and a woman who are cohabiting as husband and wife although not legally married to each other, and no agreement made in contemplation of such cohabitation, with respect to the status, ownership, or division of any property owned by them or either of them at the date of the agreement or that may be acquired by them or either of them thereafter, shall be void or illegal as being contrary to public policy or founded upon an illegal consideration; and every such agreement, if otherwise valid, may be enforced according to its tenor. Section 40A inserted 6 November 1986 Property Law Amendment Act 1986
41: Section 41 repealed 11 November 1964 21(3)(a) Perpetuities Act 1964
42: Section 42 repealed 11 November 1964 21(3)(a) Perpetuities Act 1964
3: Assurances of real and personal property
43: Fee to pass without words of limitation
Where land is conveyed to any person without words of limitation, the conveyance shall be construed to pass the fee simple or other whole estate or interest that the party conveying had power to dispose of. 1908 No 152 s 3
44: Form of conveyance
A deed according to the form in Schedule 2 1908 No 152 s 38
45: Conveyance to vest ownership
Where any land is conveyed directly and immediately to any person, the whole legal and equitable ownership of the land shall vest in that person. 1908 No 152 s 39
46: Conveyance subject to trust
Where any land is so conveyed to any person in trust for any other person, the whole legal ownership of that land shall vest in the person to whom the same is so directly and immediately conveyed, subject, however, to a trust for the benefit of the other person. 1908 No 152 s 40
47: What a conveyance of land is deemed to include
1: A conveyance of land shall be deemed to include, and shall operate to convey with the land, all rights, easements, and appurtenances belonging to the land or therewith usually held or enjoyed.
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 terms and provisions of the conveyance.
3: This section shall not be construed as giving to any person a better title to any property, right, or thing mentioned in this section than the title which the conveyance gives him to the land expressed to be conveyed, or as conveying to him any such property, right, or thing, further or otherwise than as the same could have been conveyed to him by the conveying parties. 1908 No 152 s 55
48: Declaration by tenants in common to become joint tenants
Any 2 or more persons in whom any property is beneficially vested as tenants in common may by deed declare that they will be joint tenants thereof, and thereupon the property shall vest in them as joint tenants. 1908 No 152 s 18
49: Person may convey property to himself
A person may convey or mortgage 1908 No 152 s 19 Section 49 amended 13 December 1968 Property Law Amendment Act 1968 by inserting the words or mortgage
49A: Certain instruments to be in writing
1: No legal
2: A declaration of trust respecting any land or any interest in land shall be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.
3: A disposition of an equitable interest or trust subsisting at the time of the disposition shall be in writing signed by the person disposing of the same or by his agent lawfully authorised in writing in that behalf, or by will.
4: This section does not affect the creation or operation of resulting, implied, or constructive trusts.
5: Nothing in this section shall—
a: Invalidate dispositions by will; or
aa: Affect the creation of any lease—
i: Of land subject to the Land Transfer Act 1952
ii: Of any other land, for a term not exceeding one year; or
b: Affect any interest validly created before the commencement of this section; or
c: Affect the right to acquire an interest in land by virtue of taking possession; or
d: Affect the operation of the law relating to part performance.
6: This section is in substitution for sections 1 to 3 Section 49A inserted 13 January 1981 Property Law Amendment Act 1980 Subsection (1) amended 11 December 1982 Property Law Amendment Act 1982 by inserting the word legal Subsection (5)(aa) inserted 11 December 1982 Property Law Amendment Act 1982 Subsection (6) amended Property Law Amendment Act 1982 by inserting the expression 1 to 3 and
4: Powers and conditions of sale and protection of purchasers and creditors
50: Restrictions on and relief against rescission
Section 118 1908 No 152 s 18
51: Auction sales
The provisions of section 59 Sale of Goods Act 1908 1908 No 152 s 59
52: Application of stated conditions of sale
In the completion of any contract made at any time before or after the commencement of this Act for the sale of any property, and subject to any stipulation to the contrary in the contract,—
a: Thirty years shall be substituted for 60 years as the period of commencement of title which a purchaser may require; nevertheless, earlier title than 30 years may be required in cases similar to those in which earlier title than 60 years might immediately before the commencement of this Act have been required; and
b: The obligations and rights of vendor and purchaser shall be regulated by the following rules:
i: Recitals, statements, and descriptions of facts, matters, and parties contained in instruments or statutory declarations 20 years old at the date of the contract shall, unless and except so far as they are proved to be inaccurate, be taken to be sufficient evidence of the truth of those facts, matters, and descriptions:
ii: The inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title where the purchaser on the completion of the contract has an equitable right to the production of the documents:
iii: Such covenants for production as the purchaser can and does require shall be furnished at his expense, and the vendor shall bear the expense of perusal and execution on behalf of and by himself and any necessary parties other than the purchaser:
iv: Where the vendor retains any part of an estate to which any documents of title relate he shall be entitled to retain those documents:
v: Where the land sold is held by lease (including underlease), the purchaser shall, on production of the receipt for the last payment due for rent under the lease before the actual completion of the purchase, assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion, and also, if the land is held by underlease, that all rent due under and all the covenants and provisions of every superior lease have been duly paid, performed, and observed up to that date: Provided that this rule applies only to titles and purchasers on sales properly so called. 1908 No 152 s 60
53: Section 53 repealed 1 January 1957 89(1) Trustee Act 1956
54: Contracts where certificate of title is limited
1: In the completion of any contract for the sale of any property, and subject to any stipulation to the contrary in the contract, where the land sold is comprised in a limited certificate of title under Part 12 Land Transfer Act 1952
2: Nothing herein shall alter the law between vendor and purchaser relating to survey and plan of survey of the land.
55: Rights of purchaser as to execution
On a sale, the purchaser shall not be entitled to require that the conveyance to him be executed in his presence or in that of his solicitor, as such, but shall be entitled to have at his own cost the execution of the conveyance attested by some person appointed by him who may, if he thinks fit, be his solicitor. 1908 No 152 s 15
56: Payment of consideration money to solicitor
1: Where a solicitor produces an instrument having in the body thereof or endorsed thereupon a receipt for consideration money or other consideration, the instrument being executed or the endorsed receipt being signed by the person entitled to give a receipt for that consideration, the instrument shall be sufficient authority to the person liable to pay or give the consideration for his paying or giving the same to the solicitor, and it shall not be necessary for the solicitor to produce any separate or other direction or authority in that behalf from the person who executed or signed the instrument or receipt.
2: This section applies where the instrument is executed or the receipt signed by trustees. 1908 No 152 s 29
57: Validity of conveyances by executors, etc
1: Where any person claims any property bona fide and for valuable consideration under any conveyance made by an executor or administrator, whether made to him or to any person through whom he derives title, that conveyance shall, so far as concerns the person so claiming, or any person claiming under him, be and be deemed to have always been valid and effectual.
2: On any sale by an executor or administrator the vendor's receipt in writing shall be a sufficient discharge to the purchaser for the purchase money thereby expressed to have been received, and neither the purchaser nor any person claiming under him shall be concerned to see to the application of the purchase money, or to inquire whether the sale was irregular or improper. 1908 No 152 s 104
58: Restriction on constructive notice
1: A purchaser of land shall not be prejudicially affected by notice of any instrument, fact, or thing, unless—
a: It is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or
b: It has in the transaction as to which a question of notice arises come to the knowledge of his counsel as such, or of his solicitor or other agent as such, or would have come to the knowledge of his solicitor or other agent as such if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.
2: This section shall not exempt a purchaser from any liability under, or from any obligation to perform or observe, any covenant, condition, provision, or restriction contained in any instrument under which his title is derived, mediately or immediately; and that liability or obligation may be enforced in the same manner and to the same extent as if this section had not been passed.
3: A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been passed.
4: This section shall not affect the provisions of section 39 Deeds Registration Act 1908 1908 No 152 s 115
59: Orders of Court conclusive
1: An order of the Court under any statutory or other jurisdiction shall not, as against a purchaser, be invalidated on the ground of want of jurisdiction, or want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not.
2: This section shall have effect with respect to any lease, sale, or other act under the authority of the Court and purporting to be in pursuance of the Administration Act 1969 1908 No 152 s 117 Subsection (2) amended 1 January 1957 89(2) Trustee Act 1956 by omitting the words the Settled Land Act 1908 or The reference to the Administration Act in subsection (2) was substituted 1 January 1971 Administration Act 1969
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 thereby 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. 1908 No 152 s 123
61: Voluntary alienation of land with intent to defraud purchaser
1: Every instrument (other than a will) which operates, or on registration would operate, as a voluntary alienation of land shall, if made with intent to defraud a subsequent purchaser, be voidable at the instance of that subsequent purchaser.
2: For the purposes of this section no such instrument shall, if registered before a subsequent purchase, be deemed to have been made with intent to defraud by reason only of that purchase, or that the instrument was not made for valuable consideration.
62: Purchase in good faith of reversion not to be set aside for undervalue only
No purchase of any reversionary interest in real or personal estate made in good faith and without fraud or unfair dealing shall hereafter be opened or set aside merely on the ground of undervalue. 1908 No 152 s 31
62A: Rule in
Bain v Fothergill The rule of law known as the rule in Bain v Fothergill Section 62A inserted 30 March 1995 Property Law Amendment Act 1995
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, the expression successors in title 1908 No 152 s 47
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 the expression successors in title
64A: Covenants to run with land
1: Subject to subsection (6)
a: The covenant relates to any land of the covenantor and is intended to benefit the owner for the time being of the covenantee's land; and
b: There is no privity of estate between the covenantor and the covenantee.
2: Notwithstanding any rule of law or equity to the contrary, but subject to subsections (3) to (5)
a: Be binding in equity on—
i: Every person who acquires a fee simple estate in the land (whether from the covenantor or any of the covenantor's successors in title, and whether for valuable consideration or not, and whether by operation of law or otherwise); and
ii: Every other person who is for the time being the occupier of the land within the meaning of section 126
b: Cease to be binding on any such person when that person ceases to hold a fee simple estate in the land, or ceases to be the occupier of the land, as the case may require, but without prejudice to that person's liability for any breach of the covenant arising before that person ceases to hold that estate or to occupy the land.
3: The administrator of the estate of any person who, at the date of that person's death was bound by a covenant to which this section applies shall, if the covenant is positive in effect, be bound by the covenant only to the extent of the assets of the estate in the administrator's hands and available for the meeting of any obligation under the covenant.
4: The rights under a covenant to which this section applies shall rank in relation to all other unregistered interests affecting the same land as if it were an equitable and not a legal interest, but subject to the effect of notification under the Land Transfer Act 1952 section 126A
5: Nothing in this section shall limit or affect—
a: The duty to observe the terms of any restrictive covenant affecting any land owned by any person holding any interest in the land (other than the occupier within the meaning of section 126
b: The law relating to restrictive covenants in gross.
6: Nothing in this section shall apply to any covenant entered into, or implied in respect of any particular land or any particular owners or occupiers of any land, before the 1st day of January 1987. Section 64A inserted 6 November 1986 Property Law Amendment Act 1986
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 the 1st day of 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 the provisions thereof. 1908 No 152 s 48
66: Covenants and agreements made by a person with himself and others
1: 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.
2: This section applies to covenants or agreements made or implied before or after the commencement of this Act.
66A: Covenants and agreements made by a person with himself
1: 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 purposes of any conveyance or mortgage of property under section 49
2: This section shall apply to all covenants and agreements, whether made before or after the commencement of this section: Provided that nothing in this section shall affect the rights of the parties under any judgment given in any Court before the commencement of this section, or under any judgment given on appeal from any such judgment, whether the appeal is commenced before or after the commencement of this section. Section 66A inserted 13 December 1968 Property Law Amendment Act 1968
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. 1908 No 152 s 66
68: Implied covenants may be negatived
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: Provided that any such covenant or power may be negatived, varied, or extended in the deed, or by a memorandum in writing endorsed thereon and executed as a deed is required to be executed by the parties to the deed intended to be bound thereby. 1908 No 152 s 49
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 thereof, from time to time vested. 1908 No 152 s 51
70: Construction of covenants
In the construction of a covenant or proviso, or other provision, in a deed, whether express or implied under this or any other Act, unless a contrary intention is expressed, words importing the singular or plural number, or the masculine gender, shall be read as also importing the plural or singular number, or as extending to females, as the case may require. 1908 No 152 s 52
71: Power to re-enter not implied
Neither the word grant exchange 1908 No 152 s 53
6: Covenants implied in conveyances generally
72: Covenants implied in conveyance by way of sale, etc
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
a: A covenant for right to convey, meaning thereby 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 thereby 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 thereby 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 thereby conveyed as may from time to time 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 thereby 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 New Zealand 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 money secured by the mortgage at the time fixed for the repayment thereof, or in payment of interest thereon, 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. 1908 No 152 s 56
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 money or perform the obligations secured by the encumbrance, and to perform and observe the covenants and provisions of the encumbrance, and to keep harmless and indemnified the person making the conveyance in respect of all such money, 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 thereof. 1908 No 152 s 57
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 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. 1908 No 152 s 58
75: Covenants implied in conveyance by trustees, etc
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 Public Trust manager of a mentally disordered person's or as manager of any property under Part 7 Public Trust Act 2001 paragraphs (a) (b) (c) 74 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 thereof 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 thereof 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.
3: Every conveyance of property by Public Trust it 1908 No 152 s 61 Subsection (1) amended 18 October 1957 Property Law Amendment Act 1957 by inserting the words or as manager of any property under Part 5 of the Public Trust Office Act 1957 The words the manager of a mentally disordered person manager of a mentally disordered person's substituted 1 April 1970 the committee of a mentally defective person Mental Health Act 1969 Subsection (1) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust the Public Trustee amended by substituting the words Part 7 of the Public Trust Act 2001 Part 5 of the Public Trust Office Act 1957 See clause 2 Public Trust Act Commencement Order 2002 Subsection (3) inserted 18 October 1957 Property Law Amendment Act 1957 Subsection (3) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust the Public Trustee amended by substituting the word it him See clause 2 Public Trust Act Commencement Order 2002
7: Mortgages
General provisions
76: Form of mortgage
1: Mortgages of land may be made in the form in Schedule 3
2: Every mortgage in the said form shall be deemed to be a conveyance of land by way of mortgage, and may be registered accordingly. 1908 No 152 s 62
77: No equitable mortgage by deposit of deeds
No land shall be charged or affected, by way of equitable mortgage or otherwise, by reason only of any deposit of title deeds relating thereto, whether or not the deposit is accompanied by a written memorandum of the intent with which the deposit has been made. 1908 No 152 s 63
78: Covenants, etc, implied in all mortgages
In every mortgage of land made after the commencement of this Act there shall be implied the covenants by the mortgagor and the powers and conditions set forth in Schedule 4 clauses 11 12 13 clauses 14 15 16 1908 No 152 ss 64, 65
79: Endorsements on mortgages
1: In the case of every mortgage (whether made before or after the commencement of this Act)—
a: The mortgage debt may be discharged; and
b: The interest of the mortgagee may be assigned; and
c: The amount secured by the mortgage may be increased or reduced; and
d: The rate of interest may be increased or reduced; and
e: The term or currency of the mortgage may be shortened, extended, or renewed; and
f: The covenants, conditions, and powers contained or implied in the mortgage may be varied, negatived, or added to,— by a memorandum endorsed on or annexed to the mortgage, and executed as a deed is required to be executed.
2: Any such memorandum for the purposes of paragraphs (a) (b) Schedule 5
3: A memorandum for the purposes of paragraphs (c) (d) (e) (f) section 102 Land Transfer Act 1952
4: Every such memorandum of discharge shall vacate the mortgage debt, and, subject in the case of mortgages under the Land Transfer Act 1952 Provided that nothing herein shall prevent a mortgagee from executing a deed of reconveyance of the mortgaged property if he thinks fit and the mortgagor requires it.
5: Every such memorandum of assignment shall operate as a deed of assignment of the mortgage debt, and as a deed of conveyance of the estate and interest of the mortgagee of and in the mortgaged property, and shall vest the debt and estate and interest in the assignee together with all the rights, powers, and remedies of the mortgagee expressed or implied in the mortgage. 1908 No 152 s 67
80: Effect of advance on joint account, etc
1: Where, in a mortgage, or an obligation for payment of money, or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one, out of money or as money belonging to them on a joint account, or where a mortgage, or such an obligation, or such a transfer, is made to more persons than one jointly and not in shares, the mortgage money or other money or money's worth for the time being due to those persons on the mortgage or obligation shall, as between them and the mortgagor or obligor, be deemed to be and remain money or money's worth belonging to them on a joint account; and the receipt in writing of the survivors or last survivor of them, or of the executors or administrators of the last survivor, or their or his assigns, shall be a complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account.
2: The said survivors or survivor, or the executors or administrators of the last survivor, or their or his assigns, may exercise all powers conferred by the mortgage or obligation as fully and effectually as the mortgagees, if living, could have done, subject, as to the lands under the Land Transfer Act 1952
3: This section applies only in so far as a contrary intention is not expressed in the mortgage, obligation, or transfer, and shall have effect subject to the terms and provisions thereof. 1908 No 152 s 76
80A: Security for further advances
1: Where a mortgage purports to secure a principal sum the amount of which is specified therein (whether or not the mortgage also purports to secure further advances), the mortgagee shall have the right to advance from time to time to the mortgagor the whole or any part of the principal sum the amount of which is so specified so as to rank in priority to any subsequent mortgage, notwithstanding that the advance is made after the execution or registration of the subsequent mortgage, and whether or not the mortgagee has actual or constructive notice of the subsequent mortgage at the time of making the advance: Provided that any part of the principal sum which has been repaid to the mortgagee and readvanced to the mortgagor shall be deemed for the purposes of this section not to form part of the principal sum specified in the mortgage: Provided also that nothing in this section shall derogate from the provisions of subsection (4) Land Transfer Act 1952
2: Where a mortgage granted after the commencement of this subsection purports to secure advances to be made from time to time, whether upon current account or otherwise, it shall be lawful to specify in the mortgage a maximum amount up to which the sum for the time being owing under the mortgage shall rank in priority to any subsequent mortgage; and, where a maximum amount is so specified, the mortgage shall take effect accordingly notwithstanding anything in
3: Where a mortgage granted after the commencement of this subsection secures the payment to the mortgagee of any money which he may be required to pay under any guarantee given by him to answer for an obligation entered into by the mortgagor with a third party, and the nature and extent of that obligation and the circumstances under which the mortgagee may be liable to honour his guarantee are set out in the mortgage, all money which the mortgagee may subsequently be required to pay pursuant to that obligation shall, together with interest thereon, rank in priority to any subsequent mortgage: Provided that nothing in this subsection shall destroy or adversely affect in any way the priority or protection which is conferred by virtue of registration under the provisions of any Act on a subsequent mortgage in relation to a prior mortgage then unregistered.
4: Nothing in this section applies to a security interest to which the Personal Property Securities Act 1999 Section 80A inserted 15 October 1959 Property Law Amendment Act 1959 Subsection (2) inserted 19 September 1975 Property Law Amendment Act 1975 Subsection (2) amended 1 June 1982 Credit Contracts Act 1981 by omitting the words section 8 of the Moneylenders Amendment Act 1933 or Subsection (3) inserted 19 September 1975 Property Law Amendment Act 1975 Subsection (4) inserted 1 May 2002 191(1) Personal Property Securities Act 1999 See Part 12
80B: Right of mortgagor to bring proceedings against mortgagee
1: The rule of law whereby the mortgagor is barred from instituting any proceedings in relation to the mortgage against the mortgagee unless he has first offered to redeem the mortgaged land is hereby abolished.
2: Notwithstanding any provision to the contrary in the instrument of mortgage, the mortgagor may institute any proceedings against the mortgagee notwithstanding that he has not first offered to redeem the mortgaged land. Section 80B inserted 13 November 1982 Property Law Amendment Act 1982 Redemption
81: Equity of redemption
1: A mortgagor is entitled to redeem the mortgaged land at any time before the same has been actually sold by the mortgagee under his power of sale, on payment of all money due and owing under the mortgage at the time of payment.
2: A mortgagor is entitled to redeem the mortgaged land although the time for redemption appointed in the mortgage deed has not arrived; but in that case he shall pay to the mortgagee, in addition to any other money then due and owing under the mortgage, interest on the principal sum secured thereby for the unexpired portion of the term of the mortgage.
3: A mortgagor seeking to redeem after the expiry of the term of the mortgage, or of any further term for which it has been renewed or extended, shall give to the mortgagee 3 clear months' notice in writing of his intention to redeem, or shall pay to the mortgagee 3 months' interest in lieu thereof: Provided that this subsection shall not apply in any case where the mortgagee has entered into possession of the mortgaged land or any part thereof, or has taken any steps to realise his security.
4: For the purposes of this section the expression money due and owing under a mortgage
a: For the protection and preservation of the mortgaged land, or otherwise in accordance with the provisions of the mortgage; and
b: With a view to the realisation of his security,— and in either case includes interest on the sums so expended at the rate expressed in the mortgage deed.
5: This section extends to mortgages comprising both land and chattels.
6: Nothing in this section shall affect the operation of section 16 Limitation Act 1950 1908 No 152 s 70 1939 No 7 s 8 1950 No 65 35
82: Mortgagor may require mortgagee to assign instead of reconveying
1: Where a mortgagor is entitled to redeem he shall by virtue of this Act have power to require the mortgagee, instead of discharging, and on the terms on which he would be bound to discharge, to transfer the mortgage to any third person as the mortgagor directs; and the mortgagee shall by virtue of this Act be bound to transfer accordingly.
2: This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary; but does not apply where the mortgagee is or has been in possession. 1908 No 152 s 71 1939 No 7 s 8
83: Encumbrancer to have the like right
The like right to require a mortgagee to assign the mortgage debt to a third person shall belong to and may be enforced by each encumbrancer or by the mortgagor, notwithstanding any intermediate encumbrance; but a requisition of an encumbrancer shall prevail over a requisition of the mortgagor, and, as between encumbrancers, a requisition of a prior encumbrancer shall prevail over a requisition of a subsequent encumbrancer. 1908 No 152 s 72 1939 No 7 s 8
84: Power for mortgagor to inspect title deeds
A mortgagor, so long as his right to redeem subsists, shall, notwithstanding any stipulation to the contrary, be entitled from time to time at reasonable times, on his request and at his own costs, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged land in the custody or power of the mortgagee. 1908 No 152 s 73 1939 No 7 s 8
85: Restriction on consolidation
A mortgagor seeking to redeem any one mortgage shall, by virtue of this Act, be entitled to do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage that he seeks to redeem. 1908 No 152 s 74 1939 No 7 s 8
86: Sale of mortgaged property in action for redemption
1: A person entitled to redeem any mortgaged property may have a judgment or order for sale, instead of redemption, in an action brought by him either for redemption alone or for sale alone, or for sale or redemption in the alternative.
2: In any action, whether for redemption or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or any person so interested does not appear in the action, and without allowing any time for redemption or for payment of any mortgage money, may direct a sale of the mortgaged property on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.
3: Where an action for sale is brought by a person interested in the right of redemption, the Court may, on the application of any defendant, direct the plaintiff to give security for costs, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them.
4: In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of encumbrancers. 1908 No 152 s 83
87: Repayment when mortgagee cannot be found, etc
1: Where any person entitled to receive or having received payment of any money secured by mortgage is out of the jurisdiction, cannot be found, or is unknown or is dead, or it is uncertain who is entitled, the Court, upon the application of the person entitled to redeem the mortgaged premises, may order the amount of the debt to be ascertained in such manner as the Court thinks fit, and direct the amount so ascertained to be paid into Court or, as the case may be, may by order declare that all money secured by the mortgage has been paid in full.
2: A certificate by the Registrar that such payment as aforesaid was directed and has been made or a sealed copy of the order of the Court declaring that all money secured by the mortgage has been paid in full shall, in favour of a purchaser of the land, upon registration, operate as a discharge of the land from the mortgage debt and as a deed of reconveyance in the same manner as a memorandum of discharge operates under subsection (4) Provided that as between the mortgagor and the person so entitled to receive payment as aforesaid any amount which is eventually shown by the person entitled to the mortgage debt to have been in fact due or payable over and above the amount so paid shall continue to be a debt due under the mortgage of the nature of a liability under a deed.
3: The Court shall order the amount so paid into Court to be paid to the person entitled, upon the application of that person, and on proof that the deed or instrument of mortgage, and all the title deeds which were delivered by the mortgagor to the mortgagee on executing the same, or in connection therewith, have been delivered up to the person by whom the amount was so paid into Court, or his executors, administrators, or assigns, or have been otherwise satisfactorily accounted for.
4: In the case of a mortgage under the Land Transfer Act 1952 High Court
a: He shall on payment of the prescribed fee make an entry in the register book discharging the mortgage, stating the day and hour on which the entry is made:
b: The entry shall be a discharge of the land from the mortgage: Provided that as between the mortgagor and the person so entitled to receive payment as aforesaid, any amount which is eventually shown by the person entitled to the mortgage debt to have been in fact due and payable over and above the amount so paid shall continue to be a debt due under the mortgage of the nature of a liability under a deed:
c: The District Land Registrar shall endorse on the relevant certificate of title or other document of title, and also on the memorandum of mortgage, whenever those instruments are brought to him for the purpose, particulars of the entry.
5: In any case in which subsection (1) Public Trust Public Trust its its Public Trust form numbered (1) Provided that as between the mortgagor and the person entitled to receive payment any amount which is eventually shown by the person entitled to the mortgage debt to have been in fact due or payable over and above the amount (if any) so paid shall continue to be a debt due under the mortgage of the nature of a liability under a deed.
6: Every such memorandum of discharge when registered shall, for the protection of any person dealing with the mortgagor in good faith and for value, be conclusive proof of the happening of all conditions necessary to entitle Public Trust
7: The production of Public Trust's its
8: The Court may order any person in possession of the instruments of title to the mortgaged property to deliver them to the mortgagor on production of Public Trust's its
9: In any case where Public Trust it it its it Public Trust 1908 No 152 s 75 The words High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979 Subsection (5) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust the Public Trustee amended by substituting the word its his See clause 2 Public Trust Act Commencement Order 2002 Subsection (6) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust the Public Trustee See clause 2 Public Trust Act Commencement Order 2002 Subsection (7) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust's the Public Trustee's amended by substituting the word its his See clause 2 Public Trust Act Commencement Order 2002 Subsection (8) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust's the Public Trustee's amended by substituting the word its his See clause 2 Public Trust Act Commencement Order 2002 Subsection (9) inserted 18 October 1957 Property Law Amendment Act 1957 Subsection (9) amended 1 March 2002 170(1) Public Trust Act 2001 by substituting the words Public Trust the Public Trustee by substituting in each case the word it him he See clause 2 Public Trust Act Commencement Order 2002 Rights of mortgagor in possession
88: Suit for possession of land by mortgagor
A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice has been given by the mortgagee of his intention to take possession or to enter into the receipt of the rents and profits thereof, may sue for possession, or for the recovery of the rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. 1908 No 152 s 77 Powers and rights of mortgagee and restrictions thereon
89: Foreclosure prohibited
A mortgagee shall not in any case be entitled to foreclose the equity of redemption in any land. 1908 No 152 s 69
90: Mortgagee accepting interest not to call up without notice
Where the mortgagor has made default in payment of the principal sum at the expiry of the term of the mortgage, or of any period for which it has been renewed or extended, and the mortgagee has accepted interest on the said sum for any period (not being less than 3 months) after default has been so made, then, so long as the mortgagor performs and observes all covenants expressed or implied in the mortgage, other than the covenant for payment of the principal sum, the mortgagee shall not call up and compel payment of the said sum without giving to the mortgagor 3 clear months' notice of his intention so to do. 1908 No 152 s 68
91: Powers of mortgagee in possession
1: A mortgagee in possession of any land shall as against every subsequent encumbrancer and as against the mortgagor have power from time to time to grant a lease of the whole or any part of the mortgaged land for any term not exceeding 7 years.
2: No lease under this section shall be binding upon a prior encumbrancer except so far as he has consented thereto in that behalf.
3: Every person making a lease under this section may execute and do all assurances and things necessary or proper in that behalf.
4: Every such lease shall be made to take effect in possession not later than 6 months after its date.
5: Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.
6: Every such lease shall contain a covenant by the lessee for the payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified, not exceeding one month.
7: A contract to make or accept a lease under this section may be enforced by or against every person on whom the lease if granted would be binding.
8: This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgagee in the mortgage, and has effect subject to the terms of the mortgage and the provisions therein contained.
9: The mortgagor and the mortgagee may, by agreement in writing, whether or not contained in the mortgage, reserve to or confer on the mortgagee any further or other powers of leasing or having reference to leasing, and any further or other powers so reserved or conferred shall be exercisable as far as may be as if they were conferred by this section, and with all the like incidents, effects, and consequences: Provided that the powers so reserved or conferred shall not prejudicially affect the rights of any mortgagee interested under any other mortgage subsisting at the date of the agreement unless the mortgagee joins in or adopts the agreement.
10: Nothing in this section shall be construed to enable a mortgagee to make a lease for any longer term or on any other conditions than such as could have been granted or imposed by the mortgagor, with the concurrence of all the encumbrancers, if this section had not been passed: Provided that in the case of a mortgage of leasehold land a lease granted under this section shall reserve a reversion of not less than one day.
11: While a mortgagee is in possession of any land subject to the Land Transfer Act 1952
12: The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an agreement, whether in writing or not, for leasing or letting.
13: No District Land Registrar or other person shall be concerned to inquire whether or not the occasion has arisen authorising a mortgagee to grant a lease of any land in accordance with this section; and no action shall lie under section 172 Land Transfer Act 1952
14: A mortgagee in possession of any land shall be entitled to accept a surrender of any lease thereof granted by him under this section.
15: For the purposes of this section a first mortgagee of any land shall be deemed to be in possession of the land if he is entitled to enter into possession thereof or to bring an action for possession thereof. 1932 No 27 s 2
92: Restriction on exercise by mortgagee of his rights
1: Subject to the provisions of this section, no power to sell land or to enter into possession of land conferred by any mortgage shall become or be deemed to have become exercisable, and no money secured by any mortgage of land shall become or be deemed to have become payable, by reason of any default (whether made before or after the commencement of this Act) in the payment of any money so secured or in the performance or observance of any other covenant expressed or implied in the mortgage unless and until the mortgagee serves on the owner for the time being of the land subject to the mortgage a notice that complies with the requirements of this section, and (in any case where the default complained of is capable of remedy) the owner fails to remedy the default before the date specified in the notice
1A: Every notice shall be in the form prescribed by regulations made under this Act; but no notice shall be void by reason of any variation from the prescribed form unless the notice does not adequately inform the mortgagor of—
a: The nature and extent of the default complained of; and
b: The date (being a date that complies with the provisions of subsection (2)
c: The rights that the mortgagee will be entitled to exercise if the default is not remedied within the specified period,— and the variation materially prejudices the interests of the mortgagor.
1AA: For the purposes of subsection (1) (6) subsection (1)
2: The date to be specified in the notice as aforesaid shall not be earlier than 4 weeks
3: In any case to which the provisions of this section and of section 90 section 90 section 90 section 152
4: Where any land that is subject to the mortgage is also subject to any subsequent mortgage, and the mortgagee has actual notice of the name and address of the subsequent mortgagee, he shall forthwith after serving the notice on the owner serve a copy of the notice on the subsequent mortgagee. Failure to comply with the provisions of this subsection shall not of itself prevent any of the powers referred to in subsection (1)
4A: Where, in the case of land subject to the Land Transfer Act 1952 Form N in Schedule 2 subsection (4)
5: Where the notice relates to a power to enter into possession of any land the Court may in its discretion, upon the application of the mortgagee made ex parte
6: If at any time the mortgagee exercises the power of sale conferred by any mortgage of land and the amount realised is less than the amount owing under the covenant to repay expressed or implied in the mortgage, no action to recover the amount of the deficiency or any part thereof shall be commenced by the mortgagee against any person (not being the owner of the land subject to the mortgage at the time of the exercise of the power of sale) unless the mortgagee, at least one month before the exercise of the power of sale, serves on that person notice of his intention to exercise the power of sale and to commence action against that person to recover the amount of the deficiency in the event of the amount realised being less than the amount owing under the covenant to repay.
7: This section shall have effect notwithstanding any stipulation to the contrary.
8: Nothing in this section shall be construed to affect any sale or entry into possession made before the 8th day of September 1939 (being the date of the passing of the Property Law Amendment Act 1939
9: Notwithstanding anything to the contrary in the foregoing provisions of this section, if before the date mentioned in the last preceding subsection any mortgagee for the time being entitled by reason of any default of the mortgagor to exercise the power of sale conferred by his mortgage has made an application to a Registrar of the High Court Property Law Amendment Act 1939 Provided that in any such case the sale shall not be proceeded with if, before the time fixed for the sale, the mortgagor remedies the default complained of by the mortgagee in his application to the Registrar and pays to the mortgagee the expenses already incurred by him in connection with the intended sale and any money expended by him on or about the land subsequently to the time when he made his application to the Registrar; and for the purposes of this provision the Registrar, on the application of the mortgagor, may, if he thinks fit, postpone the sale for any period not exceeding one month.
10: For the purposes of this section the term owner Land Transfer Act 1952 Deeds Registration Act 1908 1939 No 6 s 3 1950 No 27 ss 4, 5 Subsection (1) amended 11 December 1952 Property Law Amendment Act 1982 by substituting the words that complies with the requirements of this section, and (in any case where the default complained of is capable of remedy) the owner fails to remedy the default before the date specified in the notice specifying the default complained of and a date on which the power will become exercisable or the money will become payable, as the case may be, and requiring the owner to remedy the default, and the owner fails to remedy the default before the date so specified Subsection (1A) inserted 1 April 1983 Property Law Amendment Act 1982 A second subsection (1A) inserted 26 October 1993 Property Law Amendment Act 1993 The second subsection (1A) substituted (1AA) 1 July 1994 2(1) Property Law Amendment Act 1994 Subsection (2) amended 11 December 1982 Property Law Amendment Act 1982 by substituting the expression 4 weeks 1 month Subsection (4A) inserted 11 December 1952 Property Law Amendment Act 1982 The words High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979
93: Power to authorise land and minerals to be dealt with separately by mortgagee
Where a mortgagee's power of sale in regard to land has become exercisable but does not extend to the purposes mentioned in this section, the Court may, on his application, authorise him and the persons deriving title under him to dispose—
a: Of the land, with an exception or reservation of all or any mines and minerals, and with or without rights and powers of or incidental to the working, getting, or carrying away of minerals; or
b: Of all or any mines and minerals, with or without the said rights or powers, separately from the land,— and thenceforth the powers so conferred shall have effect as if they were contained in the mortgage. 1939 No 6 s 4
94: Power of sale in mortgage includes certain powers incident thereto
Subject to the provisions of section 96
a: A power to impose or reserve or make binding, as far as the law permits, by covenant, condition, or otherwise, on the unsold part of the mortgaged land or any part thereof, or on the purchaser and any land sold, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, or for the purpose of the more beneficial working thereof, or with respect to any other thing:
b: A power to sell the mortgaged land, or any part thereof, or all or any mines and minerals apart from the surface,—
i: With or without a grant or reservation of rights of way, rights of water, easements, rights, and privileges for or connected with building or other purposes in relation to the land remaining subject to the mortgage or any part thereof, or to any land sold; and
ii: With or without an exception or reservation of all or any of the mines and minerals in or under the mortgaged land, and with or without a grant or reservation of powers of working, wayleaves, or rights of way, rights of water and drainage, and other powers, easements, rights, and privileges for or connected with mining purposes in relation to the land remaining unsold, or any part thereof, or to any land sold; and
iii: With or without covenants by the purchaser to expend money on the land sold. 1939 No 6 s 5
95: Mortgagee in possession may cut and sell certain trees
Subject to the provisions of section 96 1939 No 6 s 6
96: Application of last 2 sections
1: Subject to the provisions of this section, the last 2 preceding sections shall apply only to mortgages of land executed on or after the 8th day of September 1939 (being the date of the passing of the Property Law Amendment Act 1939
2: The said sections apply only if and as far as a contrary intention is not expressed in the mortgage, and shall have effect subject to the terms of the mortgage and to the provisions therein contained. 1939 No 6 s 7
97: Mortgaged property may be sold or leased together at one price or rent
1: In the exercise by the mortgagee of a power of sale or lease contained or implied in any mortgage—
a: The mortgaged premises, or any part thereof, may be sold or leased, together with any other land or property of whatsoever nature or tenure which is the subject of the mortgage or of any collateral security from the mortgagor to the mortgagee, by one sale or lease at one price or rent; and in such case—
b: The mortgagee shall fairly and equitably apportion all costs, expenses, purchase money, and rents between the properties sold or leased.
2: A failure by the mortgagee to make any such apportionment shall not affect the purchaser or lessee, nor the title to the property in his hands.
3: This section applies to all mortgages, whether made before or after the commencement of this Act.
98: Mortgagee's receipts, discharges, etc
1: The receipt in writing of a mortgagee shall be a sufficient discharge for any money arising under the power of sale conferred by this Act, or for any money or securities comprised in his mortgage or arising thereunder, and a person paying or transferring the same to the mortgagee shall not be concerned to inquire whether any money remains due under the mortgage or to see to the application of the money or securities so paid or transferred.
2: Money received by a mortgagee under his mortgage, or from the proceeds of securities comprised in his mortgage, shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by this Act, but with this variation: that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and of conversion of securities into money instead of those incident to sale. Sale by mortgagee through registrar of High Court
99: Sale of mortgaged land by Registrar
1: Any present or future mortgagee of land may, at any time after he has become entitled to exercise the power of sale contained or implied in his mortgage, apply in writing to the Registrar who is acting within the land registration district in which the land intended to be sold is situate, or, if that land is situate in more districts than one, then to the Registrar acting in any one of those districts, to conduct the sale of the whole or any part of the land comprised in the mortgage, and in his application shall state the price (in this section and sections 100 101
1A: The applicant shall advise the Registrar in writing of the name and address (or, where they are unknown to the applicant, the last known place of residence or business)
2: As soon as practicable after receiving an application under this section the Registrar shall—
a: Fix a convenient time (being not more than 3 months and not less than one month from the date of the application) and a convenient place for the conduct of the sale; and
b: Give written notice to any person (including the mortgagor) whose name and address has been supplied to him by the applicant under subsection (1A) redemption price of
c: Give such notice of the sale by advertisement in a newspaper circulating in the neighbourhood as he considers sufficient; and
d: Approve of proper conditions of sale, employ an auctioneer, and do all other things necessary for the proper conduct of the sale. Subsection (1) amended 11 December 1982 Property Law Amendment Act 1982 by inserting the words the price (in this section and sections 100 and 101 of this Act termed the redemption price) at which the mortgagor may redeem the land to be sold Subsection (1A) inserted 19 September 1975 Property Law Amendment Act 1975 Subsection (1A) amended 11 December 1982 Property Law Amendment Act 1982 by inserting the words (or, where they are unknown to the applicant, the last known place of residence or business) Subsection (2) substituted 19 September 1975 Property Law Amendment Act 1975 Subsection (2)(b) amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words redemption price of value at which the applicant has estimated
100: Mortgagor may redeem at mortgagee's valuation
At any time before the sale the mortgagor may pay to the mortgagee either the redemption price of the land fixed the redemption price in his application for sale clause (10) Provided that where the sum so paid is less than the amount owing under the mortgage, the balance may be recovered from the mortgagor under the covenant to repay expressed or implied in the mortgage. 1908 No 152 s 79 Section 100 amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words redemption price of the land value of the land, as estimated by the mortgagee Section 100 amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words fixed the redemption price in his application for sale estimated the value thereof as aforesaid
101: Mortgagee may become purchaser
1: The mortgagee may be a bidder at any such sale conducted as aforesaid, and become the purchaser of the land or any part thereof.
2: In the event of the mortgagee being declared the purchaser, the Registrar shall, on demand by the mortgagee, execute a deed of conveyance of the land purchased, or, where the land is under the Land Transfer Act 1952
3: In the said deed or memorandum the consideration to be stated shall be not less than the redemption price of the land
4: Upon the execution of the said deed or memorandum by the Registrar, and subject, as to land under the Land Transfer Act 1952
5: A conveyance or transfer in pursuance of any such sale may be made by the Registrar to any person whom the mortgagee in writing may appoint, instead of to the mortgagee, and shall have the same force and effect in favour of the person to whom it is made as it would have had if made to the mortgagee.
6: Every such memorandum of transfer may be registered under the Land Transfer Act 1952
7: Where any sale made under section 80 of the Property Law Act 1908 1908 No 152 s 80 Subsection (3) amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words redemption price of the land value of the land as estimated by the mortgagee as aforesaid
102: Protection of bona fide purchaser
Any conveyance or memorandum of transfer executed by the Registrar upon a sale shall, in favour of any person (other than a mortgagee purchasing under section 101 Property Law Act 1905 Property Law Act 1908 Property Law Act 1905 Property Law Act 1908 1908 No 152 s 81
102A: Payment of surplus money after sale when mortgagor cannot be found
1: Notwithstanding anything in section 78 Schedule 4
2: After any sale to which this section applies, the mortgagee may, on filing in the Court nearest to which he resides an affidavit giving to the best of his knowledge and belief particulars of the mortgagor, the mortgaged property, and the sale, and on serving a copy of the affidavit on the Secretary to the Treasury, pay the surplus money to the Crown by remitting it to the Secretary to the Treasury.
3: All money paid to the Crown under this section shall be credited by the Secretary to the Treasury to a Trust Bank Account established under section 67 Public Finance Act 1989 sections 78 79 Trustee Act 1956 section 77 Trustee Act 1956
4: The receipt of the Secretary to the Treasury shall be a sufficient discharge to the mortgagee for any money paid to the Crown under this section.
5: If any mortgagee has obtained or is seeking a discharge in respect of any money under this section, the Secretary to the Treasury may at any time require the mortgagee to give such information in his possession or control as he may require in relation to the persons beneficially entitled to the money, including information as to the steps taken to trace those persons; and if any person refuses or wilfully neglects to give any such information that is in his possession or control when so required, or wilfully gives any false information in answer to any such requisition, he commits an offence and shall be liable on summary conviction to a fine not exceeding $200. Section 102A inserted 8 December 1971 Property Law Amendment Act 1971 Subsection (3) amended 14 August 1986 Public Finance Amendment Act 1986 by substituting the words section 42 of the Public Finance Act 1977 section 38 of the Public Revenues Act 1953 section 3 of the Public Revenues Amendment Act 1963 Subsection (3) amended 1 July 1989 86(1) Public Finance Act 1989 by substituting the words section 67 of the Public Finance Act 1989 the Trust Account established under section 42 of the Public Finance Act 1977
103: Fees payable on applications
1: In respect of every application under section 99
a: The prescribed fee
b: Where the land is sold, a further fee of 1/4 percent of the amount of the purchase money, but in no case shall the last-mentioned fee be less than the minimum or more than the maximum prescribed
2: In any case where the land sold is sold subject to a mortgage, the money secured by the mortgage shall be deemed to be purchase money 1908 No 152 s 82 1926 No 46 s 14 Subsection (1)(a) amended 7 Decimal Currency Act 1964 amended 23 November 1967 Property Law Amendment Act 1967 by substituting the words ten dollars two dollars Subsection (1)(a) amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words the prescribed fee a fee of $10 Subsection (1)(b) amended 7 Decimal Currency Act 1964 amended Property Law Amendment Act 1967 by substituting the words ten dollars or more than one hundred dollars two dollars or more than forty dollars Subsection (1)(b) amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words the minimum or more than the maximum prescribed Exercise of power of sale Sections 103A 103B inserted 1 July 1994 Property Law Amendment Act 1993
103A: Duty of mortgagee exercising power of sale
A mortgagee who exercises a power of sale of land or other mortgaged property, including exercise of a power of sale through the Registrar of the High Court under section 99 Sections 103A 103B inserted 1 July 1994 Property Law Amendment Act 1993
103B: No defence or indemnity
Notwithstanding any enactment or rule of law or anything contained in the deed or instrument by or under which the power of sale is conferred,—
a: It is not a defence to proceedings against a mortgagee for a breach of the duty imposed by section 103A
b: A mortgagee is not entitled to compensation or indemnity from the mortgaged property or the mortgagor in respect of any liability incurred by the mortgagee arising from a breach of the duty imposed by section 103A Sections 103A 103B inserted 1 July 1994 Property Law Amendment Act 1993 Liability to mortgagee of purchaser of land subject to mortgage
104: Purchaser personally liable to mortgagee
1: Where a person acquires any land by conveyance or transfer subject to any mortgage, the person acquiring the land shall, unless a contrary intention appears in the mortgage, and irrespective of whether he has signed the conveyance or transfer, become personally liable to the mortgagee for the payment of all principal money and interest secured by the mortgage, and shall also become personally liable to the mortgagee for the fulfilment and observance of any other covenant or agreement contained or implied in the mortgage as if he were an original mortgagor of the land and had covenanted with the mortgagee for such payment as aforesaid and for the fulfilment and observance of such covenants and agreements as aforesaid, and the mortgagee shall have remedy directly against that person accordingly, but nothing herein shall extinguish the liability of any original mortgagor under the mortgage or the liability of any intermediate transferee of the land acquired by him subject to the mortgage aforesaid.
2: Nothing in this section shall render an executor or administrator or trustee personally liable in respect of the estate of a deceased person or in respect of the property subject to a trust, as the case may be, except to the extent of the property under his control as such executor or administrator or trustee.
3: Notwithstanding anything to the contrary in any mortgage, it shall not be obligatory on any mortgagor or any person acquiring land as aforesaid to procure or execute any covenant or contract by that person for the payment of principal, interest, or other money secured by or the observance or performance of the covenants, conditions, or agreements contained or implied in the mortgage, and no covenant, contract, or condition by a mortgagor or by any such person acquiring the land as aforesaid (whether expressed in a mortgage or in any instrument collateral to the mortgage) to procure the execution of or to execute any such covenant, condition, or agreement shall have any effect whatever.
4: This section applies to all mortgages where land subject to the mortgage is acquired as aforesaid after the commencement of this Act.
5: For the purposes of this section the term conveyance Subsection (2) substituted 18 October 1957 Property Law Amendment Act 1957 Subsection (5) inserted 1 January 1953 Property Law Amendment Act 1953 Regulations Section 104AA inserted 11 December 1982 Property Law Amendment Act 1982 104AA Property Law Amendment Act (No 2) 1982
104AA: Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: Prescribing the form of notice required by section 92
b: Prescribing the application fee payable under paragraph (a) paragraph (b)
c: Prescribing the form and manner of advertising of sales to be conducted by Registrars under section 99
d: Prescribing conditions of sale to apply in respect of sales under that section, and providing for the variation of any such conditions by the Registrar, whether on the application of the mortgagee or of his own motion:
e: Providing for such other matters as are contemplated by or necessary for giving full effect to this Part of this Act and for its due administration. This section and the preceding heading were inserted 11 December 1982 Property Law Amendment Act 1982 104AA Property Law Amendment Act (No 2) 1982
7A: Special provisions applying to mortgagees in possession of or receiving income from mortgaged property
Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104BB: Application
1: This Part of this Act applies—
a: To a person who becomes a mortgagee in possession, whether personally or by an agent, of mortgaged property after the coming into force of this Part of this Act:
b: A mortgagee who, whether personally or by an agent, first receives income from mortgaged property after the coming into force of this Part of this Act:
c: Subject to subsections (3) to (6)
i: To a person who is a mortgagee in possession, whether personally or by an agent, of mortgaged property and who became a mortgagee in possession of the property before the coming into force of this Part of this Act:
ii: To a mortgagee receiving, whether personally or by an agent, income from mortgaged property and who received income from the property before the coming into force of this Part of this Act.
2: For the purposes of subsection (1)
3: Nothing in section 104DD 104II subsection (1)(c)
4: Nothing in paragraph (a) subsection (1)(c)
5: Nothing in paragraph (b) subsection (1)(c)
6: Nothing in section 104OO Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104CC: Interpretation
1: In this Part of this Act,— Director
a: A company within the meaning of section 2 of the Companies Act 1955 section 2 Companies Act 1993
i: Any person occupying the position of director of the company by whatever name called; and
ii: A person in accordance with whose directions or instructions a person referred to in subparagraph (i)
iii: A person in accordance with whose directions or instructions the board of the company may be required or is accustomed to act:
b: An overseas company, includes an agent, officer, or employee responsible in New Zealand for the business of the overseas company:
c: Any other body corporate, means a person having functions similar to those of a director of a company.
2: In sections 104DD 104LL 104OO Registrar
a: A company, has the same meaning as in section 2 of the Companies Act 1955 section 2 Companies Act 1993
b: A society registered under the Industrial and Provident Societies Act 1908
c: A society registered under the Incorporated Societies Act 1908
d: A friendly society or a credit union registered under the Friendly Societies and Credit Unions Act 1982
e: Any other body corporate registered under any enactment, means any person discharging the powers, functions, and duties of a registrar under that enactment. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104DD: Notice of entry into possession of, or receipt of income from, mortgaged property
1: A mortgagee to whom this Part of this Act applies must—
a: Forthwith after entering, whether personally or by an agent, into possession of mortgaged property; or
b: Forthwith after receiving, whether personally or by an agent, income from mortgaged property— give written notice of the fact to the mortgagor and also give public notice of the fact.
2: A notice given under subsection (1)
a: The mortgagee's full name:
b: The date on which the mortgagee entered into possession of the mortgaged property or first received income from the mortgaged property, as the case may be:
c: The address of the registered office of the mortgagee, if the mortgagee is a body corporate, or the address of the residence of the mortgagee if the mortgagee is an individual, or an address specified by the mortgagee as an address to which communications relating to the mortgaged property may be sent:
d: A brief description of the mortgaged property.
3: If the mortgagor is a body corporate, the mortgagee must send a copy of the public notice to the Registrar within 7 days after the date on which the mortgagee enters into possession of the mortgaged property or first receives income from the mortgaged property, as the case may be.
4: If a mortgagee fails to comply with this section, the mortgagee and, if the mortgagee is a body corporate, every director of the mortgagee, commits an offence and is liable on summary conviction to a fine not exceeding $10,000. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104EE: Public notice
1: Where, pursuant to section 104DD(1)
a: In at least 1 issue of the Gazette
b: In at least 1 issue of a newspaper circulating in the following areas in New Zealand:
i: The area in which the mortgaged property is situated; and
ii: The area in which is situated—
A: The mortgagor's place of business; or
B: If the mortgagor has more than 1 place of business, the mortgagor's principal place of business; or
C: If the mortgagor has no place of business or neither the mortgagor's place of business nor principal place of business is known, the mortgagor's registered office, in the case of a body corporate, or the residence of the mortgagor, in the case of an individual.
2: Where, pursuant to section 104DD(1)
a: In at least 1 issue of the Gazette
b: In at least 1 issue of a newspaper circulating in the following areas in New Zealand:
i: The area in which the mortgaged property is situated; and
ii: The area in which is situated—
A: The mortgagor's place of business; or
B: If the mortgagor has more than 1 place of business, the principal place of business of the mortgagor. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104FF: Mortgagor to make information available to mortgagee
1: A mortgagor, and, in the case of a mortgagor that is a body corporate, every director of the mortgagor must—
a: Make available to a mortgagee to whom this Part of this Act applies all books, documents, and information relating to the mortgaged property in the possession or under the control of the mortgagor:
b: If required to do so by the mortgagee, verify by statutory declaration that the books, documents, and information are complete and correct:
c: Give the mortgagee such assistance as the mortgagee may reasonably require:
d: If the mortgagor is a body corporate that has a common seal, make the common seal available for use by the mortgagee.
2: On the application of a mortgagee to whom this Part of this Act applies, the Court may make an order requiring the mortgagor or, if the mortgagor is a body corporate, any director of the mortgagor to comply with subsection (1) Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104GG: Accounting records
1: A mortgagee to whom this Part of this Act applies must at all times keep accounting records that correctly record and explain the receipts, expenditure, and other transactions relating to the mortgaged property.
2: The accounting records must be retained for not less than 6 years after the mortgagee has ceased to be in possession of the mortgaged property or has ceased to receive the income from it, as the case may be. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104HH: Duty in relation to money
1: A mortgagee must keep money relating to the mortgaged property separate from other money held by or under the control of the mortgagee.
2: Nothing in subsection (1) Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104II: First report by mortgagee
1: Not later than 2 months after entering into possession of mortgaged property or first receiving income from mortgaged property, as the case may be, a mortgagee to whom this Part of this Act applies must prepare a report in relation to the property, including—
a: Particulars of the mortgaged property:
b: Particulars of the debts and liabilities to be satisfied from the mortgaged property:
c: The names and addresses of the creditors with an interest in the mortgaged property:
d: Particulars of any other mortgage or encumbrance over the mortgaged property held by any creditor (including the date on which it was created):
e: Particulars of any default by the mortgagor in making relevant information available:
f: Such other information as may be prescribed.
2: The report must also include details of—
a: The events leading up to and giving rise to the right of the mortgagee to enter into possession of the mortgaged property or to receive the income from it, as the case may be, so far as the mortgagee is aware of them:
b: Any proposal to dispose of the mortgaged property:
c: Any amounts likely to be available for payment to other creditors of the mortgagor.
3: A mortgagee may omit from the report details of any proposals for disposal of the mortgaged property if the mortgagee considers that their inclusion would materially prejudice the exercise of the mortgagee's rights or powers.
4: If a mortgagee fails to comply with this section, the mortgagee, and, if the mortgagee is a body corporate, every director of the mortgagee, commits an offence and is liable on summary conviction to a fine not exceeding $10,000. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104JJ: Further reports by mortgagee
1: Not later than 2 months after—
a: The end of each period of 6 months after a mortgagee to whom this Part of this Act applies entered into possession of mortgaged property or first received income from mortgaged property, as the case may be; and
b: The date on which a person who was a mortgagee to whom this Part of this Act applied ceased to be in possession of the mortgaged property or the income from it, as the case may be,— the mortgagee or person, as the case may be, must prepare a further report summarising the state of affairs with respect to the mortgaged property, including all amounts received and paid during the period to which the report relates.
2: The report must also include details of—
a: Property disposed of since the date of any previous report and any proposals for disposal of mortgaged property; and
b: Any amounts likely to be available for payment to other creditors of the mortgagor.
3: A mortgagee may omit from the report required to be prepared in accordance with subsection (1)(a)
4: Where a person fails to comply with this section, that person and, if that person is a body corporate, every director of the body corporate, commits an offence and is liable on summary conviction to a fine not exceeding $10,000. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104KK: Extension of time for preparing reports
A period of time within which a person must prepare a report referred to in section 104II 104JJ Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104LL: Persons entitled to receive reports
1: A copy of every report prepared under section 104II 104JJ
2: The copy of the report must be sent to the mortgagor—
a: At the address of the mortgagor's place of business; or
b: If the mortgagor has more than 1 place of business, at the address of the mortgagor's principal place of business; or
c: If the mortgagor has no place of business or neither the mortgagor's place of business nor principal place of business is known, at the address of the mortgagor's registered office, in the case of a body corporate, or the last known residence of the mortgagor, in the case of an individual.
3: Not later than 21 days after receiving a written request for a copy of a report prepared under section 104II 104JJ
a: A creditor, director, or surety of the mortgagor; or
b: Any other person with an interest in any of the mortgaged property; or
c: The authorised agent of any of them— and on payment of the reasonable costs of making and sending the copy, the person who prepared the report must send a copy of the report to the person requesting it.
4: Within 7 days after preparing a report under section 104II 104JJ
5: Where a person fails to comply with this section, that person and, if that person is a body corporate, every director of the body corporate commits an offence and is liable on summary conviction to a fine not exceeding $10,000. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104MM: Persons entitled to inspect reports
A person to whom a report must be sent in accordance with section 104LL
a: The address of the registered office, residence, or other address of the person required to send it specified under section 104DD(2)(c)
b: Any other place of business of the person required to send it at any time after the expiration of 7 days after requesting the report to be made available for inspection at that place. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104NN: Duty to notify breaches of other Acts
1: A mortgagee to whom this Part of this Act applies of a mortgagor that is a company and that considers that the mortgagor or any director of the mortgagor has committed an offence against the Companies Act 1955 Securities Act 1978 Companies Act 1993
2: If a mortgagee fails to comply with subsection (1) Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104OO: Notice that mortgagee no longer in possession of, or receiving income from, mortgaged property
1: Where a person ceases to be a mortgagee to which this Part of this Act applies of a mortgagor that is a company by reason of any act or decision on the part of that person as mortgagee, that person must, not later than 7 days after so ceasing, deliver to the Registrar notice in writing of the fact that the person has ceased to be in possession of the mortgaged property or has ceased to receive income from it, as the case may be.
2: Where a person fails to comply with subsection (1) Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104PP: Court may terminate or limit exercise of mortgagee's powers
1: The Court may, on the application of a person referred to in subsection (2)
a: Order that a mortgagee in possession—
i: Must cease to exercise that person's powers as a mortgagee in possession as from a specified date; or
ii: Must, as from a specified date, exercise that person's powers as a mortgagee in possession only in respect of specified property; or
b: Order that a mortgagee who is receiving the income from any mortgaged property—
i: Must cease to receive the income as from a specified date; or
ii: Must cease to receive the income from specified mortgaged property as from a specified date.
2: Any of the following persons may apply to the Court under subsection (1)
a: The mortgagor:
b: If the mortgagor is a company, a liquidator:
c: If the mortgagor is a person who has been adjudged bankrupt, the Official Assignee of the estate of the mortgagor.
3: An order may be made under subsection (1)
a: The purpose of entering into possession of the mortgaged property has been satisfied; or
b: Circumstances no longer justify the mortgagee remaining in possession of the mortgaged property or continuing to receive the income from it, as the case may be.
4: Unless the Court orders otherwise, a copy of an application under this section must be served on the mortgagee not less than 7 days before the hearing, and the mortgagee may appear and be heard at the hearing.
5: An order under subsection (1)
6: An order under this section does not affect any other mortgage, security, or charge over the mortgaged property.
7: The Court may, on the application of any person who applied for or is affected by the order, rescind or amend an order made under this section. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
104PPA: Preferential claims
1: This section applies to a mortgagee, to which this Part applies, of the property of a company, other than a company in liquidation at the time the mortgagee became such a mortgagee, if the mortgagee became such a mortgagee under a security interest that—
a: is over all or any part of the company's accounts receivable and inventory or all or any part or either of them; and
b: is not a purchase money security interest that has been perfected at the time specified in section 74
c: is not a security interest that has been perfected under the Personal Property Securities Act 1999
2: A mortgagee to which this section applies must apply accounts receivable and inventory that are subject to the security interest or their proceeds
a: First, to reimburse the mortgagee for the reasonable expenses of the mortgagee in entering into possession of the mortgaged property or receiving income from the mortgaged property, as the case may be, or of doing anything that the mortgagee is required or entitled to do; and
b: Secondly, to pay preferential claims to the extent and in the order of priority specified in Schedule 7 clauses 1(1) 2(1)(b) Companies Act 1993 before paying from those assets
3: In the application of Schedule 7 Companies Act 1993 subsection (2)
a: References to a liquidator are to be read as references to a mortgagee to which this section applies; and
b: References to the commencement of the liquidation are to be read as references to the date on which the mortgagee became a mortgagee to which this section applies; and
c: References to a company being put into or being in liquidation are to be read as references to the mortgagee becoming a mortgagee to which this section applies.
4: Nothing in this section applies in relation to a company in respect of whose property a person became a mortgagee to which this section applies before the commencement of the Property Law Amendment Act 1994 section 101 of the Companies Act 1955
5: In this section, the terms account receivable inventory new value proceeds purchase money security interest security interest Personal Property Securities Act 1999
6: The provisions of this section, as in force immediately before the commencement of the Personal Property Securities Act 1999 Section 104PPA inserted 1 July 1994 3 Property Law Amendment Act 1994 Subsection (1) substituted 1 May 2002 191(1) Personal Property Securities Act 1999 See Part 12 Section 104PPA(1)(b) amended 3 December 2007 section 445 Insolvency Act 2006 Section 104PPA(1)(c) amended 3 December 2007 section 445 Insolvency Act 2006 Subsection (2) amended 1 May 2002 191(1) Personal Property Securities Act 1999 by substituting the words accounts receivable and inventory that are subject to the security interest or their proceeds property that is subject to the charge 191(1) by inserting, before the words any claim from those assets See Part 12 Section 104PPA(2)(b) amended 1 November 2007 section 41 Companies Amendment Act 2006 Subsections (5) (6) inserted 1 May 2002 191(1) Personal Property Securities Act 1999 See Part 12
104QQ: Defences available to directors in proceedings for offences under this Part
It is a defence to a director of any body corporate who is charged with an offence under this Part of this Act if he or she proves that—
a: The body corporate took all reasonable and proper steps to ensure that the relevant requirement of this Part of this Act was complied with; or
b: He or she took all reasonable steps to ensure that the body corporate complied with the relevant requirement of this Part of this Act; or
c: In the circumstances he or she could not reasonably have been expected to take steps to ensure that the body corporate complied with the relevant requirement of this Part of this Act. Part 7A inserted 1 July 1994 Property Law Amendment Act 1993
8: Leases and tenancies
General provisions
104A: Interpretation
1: For the purposes of the succeeding sections of this Part of this Act, except sections 117 to 121 Lease
a: A lease of any land on which a dwellinghouse is erected if the lessee is entitled (whether beneficially or as trustee), on or before the termination of the tenancy, to remove the dwellinghouse or to receive compensation in respect of it:
b: A licence to occupy within the meaning of section 121A Land Transfer Act 1952
c: A lease under which the lessor, or, where more persons than one are entitled as lessor, any of those persons is also entitled as lessee:
d: A lease to which Part 3 Subsection (1) lease: paragraph (b) substituted 1 July 1994 2 Company Law Reform (Transitional Provisions) Act 1994 Section 104A(1) lease amended 20 June 2011 section 233(1) Unit Titles Act 2010 Lessor lessee
2: For the purposes of this section and the succeeding sections of this Part of this Act, except sections 117 to 121 dwellinghouse
a: Any licensed premises within the meaning of the Sale of Liquor Act 1989
b: Any premises that include more than 1.25 hectares of land where the lessee's income or a substantial part thereof is derived from the use of that land for agricultural purposes within the meaning of the Rent Appeal Act 1973
c: Any camp site within the meaning of the Camping Ground Regulations 1985
3: For the purposes of sections 104D 104E Court District Court District Court Sections 104A-104F General Provisions inserted 19 September 1975 Property Law Amendment Act 1975 The reference to the Sale of Liquor Act 1989 in subsection (2)(a) substituted 1 April 1990 230(1) Sale of Liquor Act 1980 The Rent Appeal Act 1973 referred to in subsection (2)(b) repealed 144(1) Residential Tenancies Act 1986 In subsection (2)(b) repealed 144(1) Residential Tenancies Act 1986 See section 142 subsection (2)(c) Camping Ground Regulations 1985 Camping Ground Regulations 1936 In subsection (3) District Court substituted Magistrate's Court 1 April 1980 18(2) District Courts Amendment Act 1979
104B: Crown to be bound
The provisions of this Part of this Act shall, in relation to leases of dwellinghouses, bind the Crown. Sections 104A-104F General Provisions inserted 19 September 1975 Property Law Amendment Act 1975
104C: Restrictions on contracting out
1: Subject to the provisions of subsection (2) subsection (2) Property Law Amendment Act 1975
2: Nothing in subsection (1) section 104D 104E
3: Where, in any proceeding under this Part of this Act, it is asserted by any person that the rent reserved by the lease of a dwellinghouse does not exceed 50 percent of the equitable rent of that dwellinghouse, it shall be for the person making that assertion to prove it by showing that the rent does not exceed 50 percent of the equitable rent of the dwellinghouse as determined within the preceding period of 12 months by a Rent Appeal Board acting under the provisions of the Rent Appeal Act 1973 Sections 104A-104F General Provisions inserted 19 September 1975 Property Law Amendment Act 1975 In subsection (3) repealed 144(1) Residential Tenancies Act 1986
104D: Leases of dwellinghouses intended to be demolished for public works, etc
1: This section applies to—
a: Any dwellinghouse on land owned by the Crown and held for future public works; and
b: Any dwellinghouse on land owned by a local authority and held for future urban renewal or redevelopment; and
c: Any dwellinghouse on land, owned by any person other than the Crown or any local authority, that is—
i: Designated for a public work in an operative or proposed district plan under the Resource Management Act 1991 ; or
ii: Made subject to a notice of intention to take the land under the Public Works Act 1981
iii: Made subject to the powers conferred by a middle-line proclamation issued under that Act; or
iv:
2: Any person entitled and proposing to grant a lease of any dwellinghouse to which this section applies may, at any time before granting the lease, apply to the Court for an order authorising the leasing of the dwellinghouse in accordance with this section.
3: On any application made to it under subsection (2)
4: The Court shall not make an order under subsection (3)
a: That the dwellinghouse complies with all statutory and local body requirements relating to public health, and to the provision of safeguards against and means of warning and escape in case of fire, so far as they apply to the dwellinghouse; and
b: That because of the prospective demolition, redevelopment, or renovation of the dwellinghouse it would be unreasonable to require a lessor of the dwellinghouse to put it in a fit and habitable condition for residential purposes or to keep it in that condition while it is leased.
5: Neither the warranty set out in paragraph (a) paragraph (b)
6: Notwithstanding anything in subsection (3) Sections 104A-104F General Provisions inserted 19 September 1975 Property Law Amendment Act 1975 Subsection (1)(c)(i) substituted 1 October 1991 362 Resource Management Act 1991 or In subsection (1)(c)(ii) substituted In subsection (1)(c)(iv) substituted Subsection (1)(c)(iv) repealed 1 July 2003 262 Local Government Act 2002 See sections 273 to 314
104E: Leases of dwellinghouses where lessor intends to redevelop, etc
1: Any person entitled and proposing to grant a lease of any dwellinghouse pending its demolition, removal, rebuilding, or renovation may, at any time before granting the lease, apply to the Court for an order authorising the leasing of the dwellinghouse in accordance with this section.
2: On any application made to it under subsection (1)
3: The Court shall not make an order under subsection (2)
a: That the applicant intends to demolish, remove, rebuild, or renovate the dwellinghouse within a reasonable period; and
b: That the dwellinghouse complies with all statutory and local body requirements relating to public health, and to the provision of safeguards against and means of warning and escape in case of fire, so far as they apply to the dwellinghouse; and
c: That because of the prospective demolition, removal, rebuilding, or renovation of the dwellinghouse it would be unreasonable to require a lessor of the dwellinghouse to put it in a fit and habitable condition for residential purposes or to keep it in that condition while it is leased.
4: For the purposes of paragraph (a)
5: Neither the warranty set out in paragraph (a) paragraph (b)
6: Notwithstanding anything in subsection (2) Provided that the total period during which the leasing of a dwellinghouse is authorised under this section shall not exceed 2 years. Sections 104A-104F inserted 19 September 1975 Property Law Amendment Act 1975
104F: Impliedly repealed 1 February 1987 144(1) Residential Tenancies Act 1986 Sections 104A-104F inserted 19 September 1975 Property Law Amendment Act 1975
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. 1908 No 152 s 16 1949 No 51 48(1)
106: Covenants implied in leases
In every lease of land there shall be implied the following covenants by the lessee
a: That he Provided that in case the demised premises or any part thereof 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 thereof, 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 thereof shall be suspended until the demised premises shall have been rebuilt or made fit for the occupation and use of the lessee, and in case of any dispute arising under this proviso the same shall be referred to arbitration under the provisions of the Arbitration Act 1908
b: That he Provided that this covenant shall not be implied in any lease of a dwellinghouse. 1908 No 152 s 84 Section 106 amended 19 September 1975 Property Law Amendment Act 1975 by omitting the words for himself, his executors, administrators, and assigns Paragraphs (a) (b) amended 19 September 1975 Property Law Amendment Act 1975 by omitting the words or they Paragraph (b) inserted 19 September 1975 Property Law Amendment Act 1975
107: Powers in lessor
In every lease of land there shall be implied the following powers in the lessor:
a: That he may, by himself or his agents, at all reasonable times, enter upon the demised premises and view the state of repair thereof, and may serve upon the lessee a notice in writing of any defect, requiring him, within such reasonable period as may be specified in the notice, to repair the same in accordance with the covenant in that behalf contained or implied in the lease: Provided that this power shall not be implied in any lease of a dwellinghouse:
b: That whenever the rent or any part thereof, whether legally demanded or not, is in arrear for a period of 21 days, 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, the lessor may re-enter upon the demised premises (or any part thereof in the name of the whole) and thereby determine the estate of the lessee therein, but without releasing him from liability in respect of the breach or non-observance of any such covenant, condition, or stipulation:
c: That whenever the rent or any part thereof is in arrear he may levy the same by distress: Provided that this power shall not be implied in any lease of a dwellinghouse. Section 107 substituted 19 September 1975 Property Law Amendment Act 1975
107A: Abolition of lessor's right to distrain for rent of a dwellinghouse
1: No person shall be entitled to distrain for any rent due under any lease of a dwellinghouse.
2: Nothing in this section shall affect the manner in which any judgment debt may be enforced by any person. Sections 107A 107B inserted 19 September 1975 Property Law Amendment Act 1975
107B: Lessor may sell lessee's personal property following abandonment
1: For the purposes of this section, the lessee of any dwellinghouse shall be deemed to have vacated it if—
a: He has not tendered to the lessor any sum by way of rent during the preceding period of 2 months, or any sum by way of rent in respect of that period; and
b: He has not communicated with the lessor in any way during that period of 2 months; and
c: The lessor has no knowledge of the lessee having been in the dwellinghouse at any time during that period.
2: If the lessee of any dwellinghouse vacates it—
a: Leaving in the dwellinghouse any personal property; and
b: Owing to the lessor any debt by way of rent in arrear or damages for breach of covenant— the lessor may, in satisfaction of the debt, sell and dispose of any of the personal property in accordance with the provisions of this section.
3: If the lessee's present whereabouts are known to the lessor, the lessor shall give to the lessee at least 7 days' notice of his intention to sell the personal property under this section.
4: The lessor shall in every case give notice of the sale by advertisement in a newspaper published in the locality in which the dwellinghouse is situated. The advertisement shall state that the sale will be held on or after a specified date (being not sooner than 7 days after the publication of the advertisement), and shall give a brief description of the property to be sold, together with the name of the lessee.
5: The lessor may apply the proceeds of the sale in or towards payment of the debt and of the costs and expenses of the advertising and sale, and shall, on demand by the lessee, pay the surplus (if any) to the lessee. If any such surplus is unclaimed for a period of 3 months the lessor shall pay it to the Commissioner of Inland Revenue as unclaimed money, and section 11 Unclaimed Money Act 1971
6: Notwithstanding any of the foregoing provisions of this section, the lessor shall, on demand by the lessee or any other person entitled to possession of the property at any time before the property is sold, surrender the property to the lessee or that other person without charge of any kind.
7: The lessor shall not be liable to any other person in respect of the sale of any property under this section unless it is shown that at the time of the sale he had reason to believe that the property was not owned by the lessee.
8: No property sold under this section shall be recoverable from the purchaser unless it is shown that he purchased the property otherwise than in good faith. Sections 107A 107B inserted 19 September 1975 Property Law Amendment Act 1975
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. 1908 No 152 s 87
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 thereof, that covenant, condition, or agreement shall, notwithstanding any express provision to the contrary
2: Neither the assignment or underletting 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 , except in relation to any dwellinghouse, 1908 No 152 s 95 Subsection (1) amended 19 September 1975 Property Law Amendment Act 1975 by substituting the words notwithstanding any express provision to the contrary unless the lease contains an express provision to the contrary Subsection (3) amended 19 September 1975 Property Law Amendment Act 1975 by inserting the words , except in relation to any dwellinghouse
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, underletting, charging, or parting with the possession of demised premises or any part thereof 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
2: In this section the term lease , except in relation to any dwellinghouse, section 117 1936 No 31 19 Subsection (1A) inserted 10 September 1965 Property Law Amendment Act 1965 amended 19 September 1975 Property Law Amendment Act 1975 by omitting the word only Subsection (2) amended 19 September 1975 Property Law Amendment Act 1975 by inserting the words , except in relation to any dwellinghouse,
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. 1908 No 152 s 86
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 therein having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein, shall be annexed and incident to and shall go with the reversionary estate in the land or in any part thereof immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and may be recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. This subsection extends to a covenant to do some act relating to the land, notwithstanding that 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 from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased, 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.
4: This section shall apply to leases whether made before or after the commencement of this Act, but with respect only to rent accruing due after the commencement of this Act, and to the benefit of a condition of re-entry or forfeiture for a breach committed after the commencement of this Act of any covenant, condition, or provision contained in the lease.
5: In the case of leases made before the commencement of this Act, with respect to rent accrued due before the commencement of this Act, and to the benefit of a condition of re-entry or forfeiture for a breach committed before the commencement of this Act of any covenant, condition, or provision contained in the lease, section 88 of the Property Law Act 1908 Property Law Amendment Act 1951
6: This section applies only to leases made on or after the 1st day of January 1906. 1908 No 152 s 88
113: Obligation of lessor's covenants to run with reversion
1: 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 thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, in so far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled.
2: This section applies only to leases made on or after the 1st day of January 1906. 1908 No 152 s 89
114: Apportionment of conditions on severance, etc
1: Notwithstanding the severance by conveyance, surrender, or otherwise of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition 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.
2: This section applies only to leases made on or after the 1st day of January 1906. 1908 No 152 s 90
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 the 1st day of 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. 1908 No 152 s 91
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. 1908 No 152 s 92 Leases of dwellinghouses Sections 116A to 116M heading inserted 19 September 1975 Property Law Amendment Act 1975
116A: Interpretation
For the purposes of sections 116E 116F 116I 116J Court District Court District Court Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975 The words District Court substituted Magistrates' Court 1 April 1980 18(2) District Courts Amendment Act 1979
116B: Leases to which
sections 116C to 116L
1: Nothing in paragraph (a) Property Law Amendment Act 1975
2: Nothing in paragraph (b) (2) 116I to 116K (2) Property Law Amendment Act 1975
3: The provisions of sections 116C to 116G (1) Property Law Amendment Act 1975 Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116C: Lessee not to be liable for waste
1: A lessee of a dwellinghouse shall not be liable for waste, whether voluntary, permissive, or equitable.
2: Nothing in subsection (1)
a: Limit or affect the lessee's obligations under any of the covenants implied in the lease by section 116D
b: Entitle the lessee to make any additions, alterations, or improvements to the dwellinghouse without the prior consent of the lessor. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116D: Covenants implied on part of lessees of dwellinghouses
In every lease of a dwellinghouse there shall be implied the following covenants by the lessee:
a: That he will, at all times during the continuance of the tenancy,—
i: Keep the dwellinghouse in a clean condition; and
ii: Keep any grounds forming part of the dwellinghouse free from any accumulation of tins, bottles, paper, or other refuse or rubbish of any kind— having regard to the condition of the dwellinghouse (including any grounds) at the commencement of the tenancy and to any subsequent improvements effected by the lessor:
b: That he will, as soon as practicable, make good any damage to the dwellinghouse (including damage to any drains, fences, paths, lawns, gardens, or grounds, or to any clotheslines or other facilities provided in the grounds, or to any conduits serving the dwellinghouse, or to any windows, doors, fixtures, fittings, appliances, furniture, drapes, blinds, or other chattels or facilities leased with the dwellinghouse) caused by or arising from the wilful or negligent act or omission of the lessee or of any person permitted by him to enter or to remain in the dwellinghouse, not being damage caused by fair wear and tear:
c: That he will, at the termination of the tenancy, yield up the dwellinghouse (including any grounds) in a clean and tidy condition and free from any accumulation of tins, bottles, paper, or other refuse or rubbish of any kind, having regard to the condition of the dwellinghouse (including the grounds) at the commencement of the tenancy and to any subsequent improvements effected by the lessor. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116E: Lessor's remedies where dwellinghouse not kept in clean and tidy condition, etc
1: Where the lessee of any dwellinghouse is in breach of either of the covenants implied in the lease by paragraphs (a) (b)
2: If, on an application made under subsection (1)
a: Shall make an order requiring the lessee, within such period as the Court may specify in the order, to carry out in a proper and workmanlike manner all such work as the Court considers necessary or desirable to remedy the breach; and
b: May make an order requiring the lessee to pay to the lessor such sum as the Court considers reasonable by way of compensation for the breach.
3: Notwithstanding anything in subsection (1)
4: Notwithstanding any of the foregoing provisions of this section, if, within the period specified in any notice served on the lessee under subsection (3)
a: Carried out in a proper and workmanlike manner all work necessary or desirable to remedy the breach; or
b: Served on the lessor a notice in writing denying the breach,— the lessor may forthwith carry out any work necessary or desirable to remedy the lessee's default, and recover the reasonable cost of so doing from the lessee, whether by way of deduction from money paid on account of rent or otherwise.
5: If, on an application made under this section, the Court is satisfied that the dwellinghouse has been damaged by any person after the commencement of the lease, it shall be for the lessee to prove that the damage was not caused by and did not arise from the wilful or negligent act or omission of the lessee or of any person permitted by him to enter or to remain in the dwellinghouse.
6: For the purposes of an application under this section, or under section 116F Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116F: Lessor's remedies where urgent work required
1: Notwithstanding anything in section 116E paragraphs (a) (b)
2: On an application made under subsection (1)
a: That the work in respect of which the application is made has been carried out by the lessor in a proper and workmanlike manner;
b: That at the time when the work was carried out by the lessor he believed on reasonable grounds that it was urgently required to avoid the risk of further damage to the dwellinghouse;
c: That the work was made necessary as a result of the breach by the lessee of either of the covenants implied in the lease by paragraphs (a) (b)
d: That in all the circumstances the lessor acted reasonably in carrying out the work,— make an order requiring the lessee to pay to the lessor the reasonable cost of carrying out the work. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116G: Lessor may enter dwellinghouse to view condition or carry out work
1: The lessor of a dwellinghouse may, after giving to the lessee not less than 24 hours' notice, enter the dwellinghouse at any reasonable time, personally or by his agent,—
a: To inspect the state of repair of the dwellinghouse; or
b: To carry out any work on the dwellinghouse required by or under this Act to be carried out by him.
2: Notwithstanding anything in subsection (1)
a: With the consent of the lessee:
b: Whenever he believes on reasonable grounds that the dwellinghouse is being damaged at that time, whether by any person or otherwise:
c: Where the lessee has vacated the premises. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116H: Warranty of habitability and covenant to repair implied
1: In every lease of a dwellinghouse there shall be implied on the part of the lessor,—
a: A warranty that the dwellinghouse is at the commencement of the tenancy in a fit and habitable condition for residential purposes:
b: A covenant that he will, at all times during the continuance of the tenancy, keep the dwellinghouse in a fit and habitable condition for residential purposes.
2: Notwithstanding anything in subsection (1) paragraph (b)
a: As limiting or affecting the lessee's obligations under either of the covenants implied in the lease by paragraphs (a) (b)
b: As requiring the lessor to rebuild or reinstate the dwellinghouse in the event of damage or destruction by fire, flood, lightning, storm, tempest, earthquake, or other inevitable accident. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116I: Lessee's remedies where dwellinghouse not in a fit and habitable condition
1: Where the lessor of any dwellinghouse is in breach of the warranty implied in the lease by paragraph (a) paragraph (b)
2: It shall not be a defence to an application made under this section in respect of a breach of the warranty implied in the lease by paragraph (a)
3: If, on an application made under subsection (1)
a: Shall make an order requiring the lessor, within such period as the Court may specify in the order, to carry out in a proper and workmanlike manner all such work as the Court considers necessary or desirable to remedy the breach; and
b: May make an order requiring the lessor to pay to the lessee such sum as the Court considers reasonable by way of compensation for the breach; and
c: May make an order reducing the rent that would otherwise be payable under the lease by such amount as the Court considers reasonable for the period during which the work required under paragraph (a)
4: In determining for the purposes of this section whether a dwellinghouse is in a fit and habitable condition for residential purposes the Court shall have regard to the following matters, namely:
a: The general state of repair and decoration of the dwellinghouse;
b: The stability of the dwellinghouse;
c: The degree (if any) to which the dwellinghouse is damp;
d: Whether the dwellinghouse is well-ventilated;
e: The degree (if any) to which the dwellinghouse admits natural light;
f: The bathroom and laundry facilities provided in the dwellinghouse, and the quality and quantity of the water supply to the dwellinghouse;
g: The drainage and other facilities for the disposal of waste-water from the dwellinghouse;
h: The sanitary appliances provided in the dwellinghouse, and the facilities for the disposal of sewage from the dwellinghouse;
i: The facilities provided in the dwellinghouse for the storage, preparation, and cooking of food; and
j: Such other matters as the Court considers relevant.
5: Notwithstanding anything in subsection (1)
6: Notwithstanding any of the foregoing provisions of this section, if, within the period specified in any notice served on the lessor under subsection (5)
a: Put the dwellinghouse in a fit and habitable condition for residential purposes; or
b: Served on the lessee a notice in writing denying the breach;— the lessee may forthwith carry out any work necessary to put the dwellinghouse in a fit and habitable condition for residential purposes, and recover the reasonable cost of so doing from the lessor, whether by way of set-off against rent thereafter accruing due, or otherwise. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116J: Lessee's remedies where urgent work required
1: Notwithstanding anything in section 116I paragraph (a) paragraph (b)
2: On an application made under subsection (1)
a: That the work in respect of which the application is made has been carried out by the lessee in a proper and workmanlike manner;
b: That at the time when the work was carried out by the lessee, the lessee believed on reasonable grounds that it was urgently required to protect the safety or health of the lessee or any other person residing with the lessee or to avoid the risk of further damage to the dwellinghouse;
c: That the work was made necessary as a result of the breach by the lessor of the warranty or the covenant referred to in subsection (1)
d: That in all the circumstances the lessee acted reasonably in carrying out the work,— make an order requiring the lessor to pay to the lessee the reasonable cost of carrying out the work. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116K: Notice terminating lease void in certain cases
1: Where a lessee under a lease of a dwellinghouse serves on the lessor a notice under subsection (5) section 116J subsection (1)
a: Serves on the lessee a notice purporting to terminate the tenancy, the notice shall be void; or
b: Evicts the lessee, the eviction shall be deemed wrongful and the lessor shall be liable in damages to the lessee accordingly.
2: In any proceedings brought by the lessor for the recovery of possession of a dwellinghouse or for the ejectment of the lessee it shall be a good defence to show that the lessor commenced the proceedings by reason of the lessee exercising or commencing to exercise or making known to the lessor his intention to exercise any of the remedies specified or referred to in subsection (1)
3: In any case where it is alleged—
a: That by virtue of paragraph (a)
b: That by virtue of paragraph (b)
c: That the proceedings for the recovery of possession of a dwellinghouse or the ejectment of the lessee were commenced by the lessor by reason of the lessee having exercised or commenced to exercise or made known to the lessor his intention to exercise any of the remedies specified or referred to in subsection (1) and it is shown that the notice was served or the lessee was evicted or the proceedings were commenced (as the case may require) within 6 months after the lessee exercised or commenced to exercise or made known to the lessor his intention to exercise any of those remedies, it shall be for the lessor to prove that he did not serve the notice or evict the lessee or commence the proceedings (as the case may require) by reason of the lessee exercising or commencing to exercise or making known to the lessor his intention to exercise any of those remedies. Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116L: Section 116L repealed 1 February 1986 144(1) Residential Tenancies Act 1986 Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975
116M: Notices may be given in prescribed form
1: Any notice required to be given by a lessor of a dwellinghouse to the lessee or by the lessee of a dwellinghouse to the lessor under any of the provisions of section 116A to 116L
2: For the purposes of subsection (1) Sections 116A to 116M inserted 19 September 1975 Property Law Amendment Act 1975 Relief against forfeiture
117: Interpretation
For the purposes of the next 2 succeeding sections,— Bankruptcy Lease Lessee Lessor Underlease Underlessee 1908 No 152 s 93
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 time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation therefor in money to the satisfaction of the lessor.
1A: 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. Failure to comply with the provisions of 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 thereof 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 of Parliament.
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—
a: To a condition for forfeiture
b: In the case of a lease of any premises licensed under the Sale of Liquor Act 1989
7: Except in a case where the lessee is bankrupt
8: This section shall have effect notwithstanding any stipulation to the contrary. 1908 No 152 s 94 Subsection (1A) inserted 15 October 1959 Property Law Amendment Act 1959 Subsection (6)(a) amended 23 November 1967 Property Law Amendment Act 1967 by omitting the words on the bankruptcy of the lessee, or In subsection (6)(b) substituted Subsection (7) amended 23 November 1967 Property Law Amendment Act 1967 by inserting the words Except in a case where the lessee is bankrupt
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 thereof, 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 thereof, 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 underlessee be entitled to require a lease to be granted to him for any longer term than he had under his original underlease. 1908 No 152 s 96 Relief against refusal to grant renewal, etc
120: Relief of lessee against refusal of lessor to grant a renewal or to assure the reversion
1: In this section, unless the context otherwise requires, the terms lease lessee lessor section 117
2: This section applies to leases made either before or after the commencement of this Act, 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 thereto assure to the lessee the lessor's reversion expectant on the lease; and
b: The lessee is in breach of any such covenant, condition, or agreement, or has failed 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; and
c: The lessor has refused to grant that renewal or that new lease or to assure that reversion, as the case may be,— the lessee may in any action (whether brought by the lessor or the lessee and whether brought before or after the commencement of this Act), 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:
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 in accordance with 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.
7A:
8: Where pursuant to this section an order is made by the Court for the renewal of a lease of any Maori land, or for the grant of a new lease of any such land, or for the assurance of the lessor's reversion in any such land, confirmation of the renewal or of the new lease, or of an assurance of the reversion, as the case may be, shall be granted under Te Ture Whenua Maori Act 1993 1928 No 13 s 2 1947 No 59 I The original subsection (3)(b) amended 19 September 1975 Property Law Amendment Act 1975 Subsection (3)(b) substituted (3)(c) inserted 9 December 1976 Property Law Amendment Act 1976 Subsection (6) repealed 9 December 1976 Property Law Amendment Act 1976 Subsection (7A) inserted 19 September 1975 Property Law Amendment Act 1975 repealed 9 December 1976 Property Law Amendment Act 1976 In subsection (8) substituted
121: Limitation of time for application for relief
1: Application for relief in accordance with the last preceding section 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 last preceding subsection, 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 the said subsection shall begin to run from the date of the communication of the notice accordingly. 1928 No 13 s 3
9: Easements, restrictive stipulations, and matters affecting neighbouring land
This heading was substituted Easements, Restrictive Stipulations, and Encroachments Property Law Amendment Act 1975 Easements in gross
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. 1908 No 152 s 13 Light and air
123: Access or use of light or air
1: 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: Provided that nothing in this section shall prejudice or affect any easement or right to access or use of either light or air existing or acquired, by prescription or otherwise, before the 27th day of July 1894 (being the date of the commencement of the Light and Air Act 1894
2: This section applies to all lands in New Zealand, including lands held by or on behalf of the Crown.
3: Nothing in this section shall be deemed to repeal or affect any law or statute relating to the pollution of air. 1908 No 152 s 113 1927 No 49 s 5
124: Conditions precedent to grant of right of light or air
A grant of the right of access of light or air made at any time on or after the 24th day of November 1927 may be enforced if the grant—
a: Is made by deed, or by an instrument in an appropriate form provided by the Land Transfer Act 1915 Land Transfer Act 1952
b: Is duly registered within 12 months from the date of the execution thereof by the grantor:
c: Limits and defines accurately the area or parcel of land on, to, or over which the uninterrupted access of light or air, or light and air, is intended to be provided for. 1927 No 49 s 3
125: Effect of grants
1: Every such grant shall, if duly registered within the period defined in the last preceding section, confer upon the owner for the time being of the dominant tenement such rights as may be therein defined in respect of the access of light or air, or light and air; and those rights shall enure, unless otherwise provided, notwithstanding that any buildings erected upon the dominant tenement may be altered or destroyed and replaced by other buildings.
2: The erection of buildings of any height not encroaching upon the area limited and defined as aforesaid shall not be deemed to be an infringement of the right or a derogation from the grant. 1927 No 49 s 4 Easements and covenants The heading Easements and covenants substituted Easements and Restrictive Stipulations 6 November 1986 Property Law Amendment Act 1986
126: Interpretation
In sections 126A to 126G Schedule 9 Court Easement of vehicular right of way
a: An instrument registered under the Land Transfer Act 1952
b: A contract or arrangement that is enforceable at law or in equity against the occupier for the time being of the servient tenement: Notice section 126C Occupier
a: In relation to any land other than a public reserve, means the owner of the land, except that,—
i: Where another person is in occupation of the land under a tenancy granted for a term of not less than 10 years certain or continues to be in occupation of it under such a tenancy, that other person shall be the occupier of the land for the purposes of those sections:
ii: Where no person is the occupier of the land by virtue of subparagraph (i)
b: In relation to any public reserve, means the local authority, trustees, or persons in which or whom control of the reserve is vested: Positive covenant Section 126 substituted 6 November 1986 Property Law Amendment Act 1986
126A: Notification of covenants
1: Where a positive covenant or a restrictive covenant relating to any land under the Land Transfer Act 1952
a: The District Land Registrar shall have power to enter in the appropriate folium of the register book relating to the land subject to the burden of the covenant and the land with the benefit of the covenant
b: A notification in the register book of any such covenant shall not give the covenant any greater operation than it has under the instrument creating it:
c: Every such covenant notified on the appropriate folium of the register book shall be an interest within the meaning of section 62 Land Transfer Act 1952
2: For the purposes of subsection (1) the operative date
a: In relation to positive covenants, means the 1st day of January 1987:
b: In relation to restrictive covenants, means the 1st day of January 1953. Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986 Subsection (1)(a) amended 1 June 2002 65(4) Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002 by inserting the words and the land with the benefit of the covenant burden of the covenant
126B: Rights implied in easements of vehicular right of way
1: In every grant of an easement of vehicular right of way there shall be implied the rights set out in Schedule 9
2: To the extent that any such rights may be exercised by an occupier in respect of the occupier's own land, those rights shall be in addition to and not in limitation of the occupier's rights as occupier of the land.
3: Subsection (1)
4: Where the instrument, contract, or arrangement creating the easement was executed, entered into, or made before the date of the commencement of this section, no provision of that instrument, contract, or arrangement shall be taken for the purposes of subsection (3)
5: The provisions of this section shall be in addition to and not in derogation of the provisions of section 90D Land Transfer Act 1952 section 27(3) Housing Act 1955 Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986
126C: Occupier may give notice of work required
1: Where the occupier of any land seeks to require any occupier of any other land to undertake or contribute to the cost of undertaking any work required in terms of any positive covenant, or of any easement of vehicular right of way, that occupier may serve on that other occupier a notice—
a: Specifying the work required to be carried out, with sufficient particularity to enable the recipient to comprehend the nature of the work required and to estimate the cost of the work; and
b: Identifying the positive covenant or easement of vehicular right of way under which it is claimed the work is required and the recipient of the notice is obliged to undertake or contribute to the cost of undertaking the work; and
c: Setting out the consequences of failure to comply with the notice.
2: If it is proposed that the cost of the work shall be borne by 2 or more occupiers (whether or not including the sender of the notice), the notice shall state the shares that are proposed.
3: If it is considered by the sender of the notice that it will be necessary for the purposes of undertaking the work or any part of it to enter upon the recipient's land, not being, in the case of an easement of vehicular right of way, the portion of that land actually comprised in the right of way, the notice shall include a statement to that effect, indicating the intended purpose, extent, and duration of the proposed entry.
4: In the absence of agreement to the contrary, an occupier of land shall not be liable to contribute to the cost of any part of the work that is done—
a: After the due service of such a notice and before due service of a cross-notice on the occupier who gave the notice or the expiration of 21 days from the date of the service of the notice, whichever first happens:
b: After the due service of such a notice and cross-notice, and while differences between the parties remain to be resolved either by agreement or by the Court. Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986
126D: Recipient of notice may serve counter-notice
1: If the recipient of a notice disputes the nature or extent of the work required, or the apportionment of the cost of the work, or any matter relating to entry onto the recipient's land, as specified in the notice, the recipient may, within 21 days after the date of the service of the notice, serve on the occupier who sent the notice a cross-notice signifying the recipient's objection, and may make counter-proposals in that cross-notice.
2: Any counter-proposal proposed in a cross-notice shall be specified with the same particularity as is required in the case of a notice by section 126C Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986
126E: Effect of change of occupier
Where a notice or cross-notice is duly given by the occupier of any land to the occupier of any other land in accordance with section 126C 126D Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986
126F: Jurisdiction of Court
1: Notwithstanding that a question of title may be involved, a Court shall have jurisdiction to hear and determine all questions and disputes arising in relation to the following matters:
a: Whether any positive covenant or restrictive covenant—
i: Does or does not relate to, or beneficially affect, any land; or
ii: Is or is not enforceable, whether under this Act or otherwise, by or against any person:
b: Whether any easement is or is not an easement of vehicular right of way within the meaning of section 126
c: Whether any work is or is not required in accordance with any such covenant or easement, and the extent and nature of that work:
d: The reasonable and proper cost of any such work, including interest on outlay and reasonable remuneration for the superintendence and labour of an occupier (or of any person acting on an occupier's behalf) when the occupier is or has been personally engaged on the work:
e: The person or persons by whom the cost of any such work is to be borne; and, if the cost is to be borne by 2 or more persons, the proportion of the cost that each of them shall bear:
f: The date on or before which, and the manner in which, any such work is to be done:
g: The use on any land of animals, vehicles, aircraft, hovercraft, or any other mode of conveyance, and any equipment, for the purpose of carrying out any such work:
h: Any other question or dispute arising in respect of any such covenant, easement, or work:
i: The costs of any proceedings (including such expenses of survey as the Court thinks fit), and the parties by whom and to whom costs are to be paid.
2: In determining under subsection (1)(e)
3: In any case where—
a: A notice has been given under subsection (1)
b: That notice stipulates, in accordance with subsection (3)
c: Any matter relating to such entry is in dispute between the parties,— the Court may, by order, authorise entry onto the land, on such terms and subject to such conditions as it thinks fit, if it is satisfied that it would not be reasonably practicable to undertake any necessary work without such entry.
4: In any case where a Court has jurisdiction under this section, it may—
a: Make such consequential order as it thinks fit:
b: Enter judgment for such sum of money as it thinks fit.
5: In such case,—
a: The Court may make or enter an interim order or judgment:
b: The order or judgment shall be deemed to be final unless it expressly states that it is an interim order or judgment. Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986
126G: Power for Court to modify or extinguish easements and covenants
1: Where land is subject to an easement or a positive covenant or a restrictive covenant, a Court may from time to time, on the application of the occupier of the land, by order, modify or wholly or partially extinguish the easement or covenant upon being satisfied—
a: That, by reason of any change since the creation of the easement or covenant—
i: In the nature or extent of the user of the land to which the benefit of the easement or covenant is annexed or of the user of the land subject to the easement or covenant; or
ii: In the character of the neighbourhood; or
iii: In any other circumstances of the case that the Court considers relevant,— the easement or covenant ought to be modified or wholly or partially extinguished; or
b: That the continued existence of the easement or covenant in its present form would impede the reasonable user of the land subject to the easement or covenant in a different manner or to a different extent from that which could have been reasonably foreseen by the original parties at the time of the creation of the easement or covenant; or
c: That every occupier of full age and capacity of the land to which the benefit of the easement or covenant is annexed has agreed to the easement or covenant being modified or wholly or partially extinguished, or by his or her acts or omissions may reasonably be considered to have abandoned or waived the easement or covenant wholly or in part; or
d: That the proposed modification or extinguishment will not substantially injure the persons entitled to the benefit of the easement or covenant.
2: Without limiting subsection (1) Schedule 9
3: Where any proceedings are instituted to enforce an easement or a positive covenant or a restrictive covenant, or to enforce any rights arising out of a breach of any such covenant, any person against whom the proceedings are instituted may, in those proceedings, apply to the Court for an order under this section.
4: Notice of any application made under this section shall, if the Court so directs, be given to the territorial authority (within the meaning of the Local Government Act 2002
5: An order under this section shall, when registered in accordance with the succeeding provisions of this section, be binding on all persons, whether of full age or capacity or not, then entitled or thereafter becoming entitled to the benefit of the easement or covenant, and whether or not those persons are parties to the proceedings or have been served with notice.
6: In the case of land under the Land Transfer Act 1952
7: 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. Sections 126A to 126G inserted 6 November 1986 Property Law Amendment Act 1986 Subsection (4) amended 1 July 2003 262 Local Government Act 2002 Local Government Act 2002 Local Government Act 1974 See sections 273 to 314
127: Power for Court to modify or extinguish easements and restrictive stipulations
Section 127 repealed 6 November 1986 Property Law Amendment Act 1986 Encroachments
128: District Court may authorise entry for erecting or repairing buildings, etc
1: The owner of any land may at any time apply to a District Court
2: On any such application the Court may make such order as it thinks fit. Any such order, or any provision thereof, may be made upon and subject to such terms and conditions as the Court thinks fit.
3: Every application under this section shall be made by originating application in accordance with the rules of procedure for the time being in force under the District Courts Act 1947
4: For the purposes of this section, the term owner Land Transfer Act 1952 1950 No 27 s 2 The words District Court substituted Magistrates' Court 1 April 1980 18(2) District Courts Amendment Act 1979
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 High Court
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 in its discretion 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 in accordance with 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.
6: Any District Court High Court District Court District Court District Court section 37 the District Courts Act 1947 Provided that a party intending to invoke the powers given to a District Court High Court High Court District Court
7:
8: Any order under this section may be registered as an instrument under the Land Transfer Act 1952 Deeds Registration Act 1908 or Part 1 Section 129 substituted 18 October 1957 Property Law Amendment Act 1957 The words High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979 The words District Court substituted Magistrates' Court 1 April 1980 18(2) District Courts Amendment Act 1979 Subsection (7) repealed 101(1) Stamp and Cheque Duties Act 1971 Subsection (8) amended 1 October 1991 362 Resource Management Act 1991 by substituting the words or Part 1 of the Crown Minerals Act 1991 or the Mining Act 1971
129A: Relief in cases of mistake as to boundaries or identity of land
1: Where (whether before or after the commencement of this section) 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) High Court
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 in its discretion make an order—
a: Vesting the 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: Every person for the time being in possession of the building or having any estate or interest in the piece of land wrongly built upon or in the original piece of land, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, easement, contract, or other instrument affecting or relating to any such land, and the local authority concerned, shall be entitled to apply for an order in accordance with 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 applicant or any other person.
7: Any District Court High Court District Court District Court District Court section 37 the District Courts Act 1947 Provided that a party intending to invoke the powers given to a District Court High Court High Court District Court
8:
9: Nothing in this section shall restrict the operation of section 129 Section 129A inserted 23 October 1963 Property Law Amendment Act 1963 The words High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979 The words District Court substituted Magistrates' Court 1 April 1980 18(2) District Courts Amendment Act 1979 Subsection (8) repealed 101(1) Stamp and Cheque Duties Act 1971 Landlocked land The heading Landlocked land inserted 19 September 1975 Property Law Amendment Act 1975
129B: Reasonable access may be granted in cases of landlocked land
1: For the purposes of this section,—
a: A piece of land is landlocked if there is no reasonable access to it:
b: Owner owner
c: Reasonable access of the Resource Management Act 1991
2: The owner of any piece of land that is landlocked (in this section referred to as the landlocked land) may apply at any time to the Court for an order in accordance with this section.
3: On an application made under this section—
a: The owner of each piece of land adjoining the landlocked land shall be joined as a defendant to the application:
b: Every person having any estate or interest in the landlocked land, or in any other piece of land (whether or not that piece of land adjoins the landlocked land) that may be affected if the application is granted, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, easement, contract, or other instrument affecting or relating to any such land, and the local authority concerned, shall be entitled to be heard in relation to any application for or proposal to make any order under this section.
4: The applicant shall, as soon as practicable after filing his application in Court, serve a copy of it on the local authority concerned.
5: For the purposes of subsection (3)
6: In considering an application under this section the Court shall have regard to—
a: The nature and quality of the access (if any) to the landlocked land that existed when the applicant purchased or otherwise acquired the land;
b: The circumstances in which the landlocked land became landlocked;
c: The conduct of the applicant and the other parties, including any attempts that they may have made to negotiate reasonable access to the landlocked land;
d: The hardship that would be caused to the applicant by the refusal to make an order in relation to the hardship that would be caused to any other person by the making of the order; and
e: Such other matters as the Court considers relevant.
7: If, after taking into consideration the matters specified in subsection (6)
a: Vesting in the owner of the legal estate in fee simple in the landlocked land the legal estate in fee simple in any other piece of land (whether or not that piece of land adjoins the landlocked land):
b: Attaching and making appurtenant to the landlocked land an easement over any other piece of land (whether or not that piece of land adjoins the landlocked land).
8: Any order under this section may be made upon such terms and subject to such conditions as the Court thinks fit in respect of—
a: The payment of compensation by the applicant to any other person; and
b: The exchange of any land by the applicant and any other person; and
c: The fencing of any land, and the upkeep and maintenance of any fence; and
d: The upkeep and maintenance of any land over which an easement is to be granted; and
e: The carrying out of any survey that may be required by the District Land Registrar before he will issue, in respect of any piece of land affected by the order, a certificate of title free of any limitations as to title or parcels within the meaning of Part 12 Land Transfer Act 1952
f: The time in which any work necessary to give effect to the order is to be carried out; and
g: The execution, stamping, and delivery of any instrument; and
h: Such other matters as the Court considers relevant.
9: Every order made under subsection (7) paragraphs (b) (c)
10: Where the Court makes an order under this section, the Court may, in the order—
a: Declare any estate or interest in any piece of land affected by the order to be free of 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:
b: Declare that the legal estate in fee simple in any piece of land to be vested in the owner of the legal estate in fee simple in the landlocked land shall so vest subject to the same terms, conditions, liabilities, and encumbrances as those on and subject to which the owner holds the estate in the landlocked land, and shall be subject in all respects to any instrument of mortgage, charge, lease, sublease, or other encumbrance affecting that estate in the landlocked land as if the piece of land to be vested had been expressly included in the instrument.
11: Where the Court makes an order (in this subsection referred to as the principal order) under subsection (7)
a: An order authorising any person named in the order, his agents, employees, and contractors, with or without animals, vehicles, aircraft, hovercraft, and any mode of conveyance and any equipment, to enter upon any piece of land specified in the order for the purpose of carrying out any work necessary to give effect to the principal order:
b: Such other consequential order as the Court may think necessary or desirable to give full effect to the principal order.
12: Any order made under subsection (7) Land Transfer Act 1952 Deeds Registration Act 1908 or Part 1 Crown Minerals Act 1991
13: This section shall bind the Crown, and shall apply to all land, including Maori land and Crown land: Provided that the Court shall not have power under this section to grant reasonable access to any land over—
a: Any land that is comprised in any National Park within the meaning of the National Parks Act 1980
b: Any land that is comprised in any public reserve within the meaning of the Reserves Act 1977
c: Any railway line within the meaning of the New Zealand Railways Corporation Act 1981
14: Notwithstanding any of the foregoing provisions of this section, on an application made under this section the Court may decline to make an order if it is of the opinion, having regard to all the circumstances of the case, that the applicant is entitled and should be required to seek relief under section 124 of the Public Works Act 1928 section 316 or sections 326A to 326D Te Ture Whenua Maori Act 1993
15: Nothing in Part 10 Resource Management Act 1991 Sections 129B 129C inserted 19 September 1975 Property Law Amendment Act 1975 Subsection (1)(c) amended 1 October 1991 362 Resource Management Act 1991 by substituting the words of the Resource Management Act 1991 of the Town and Country Planning Act 1977 Subsection (12) amended 1 October 1991 362 Resource Management Act 1991 by substituting the words or Part 1 of the Crown Minerals Act 1991 or the Mining Act 1971 In the proviso substituted The Reserves Act 1977 (1977 No 66) has been substituted The New Zealand Railways Corporation Act 1981 (1981 No 119) has been substituted In subsection (14) substituted Subsection (14) amended 1 July 1993 362(1) Te Ture Whenua Maori Act 1993 by substituting the expression section 316 of Te Ture Whenua Maori Act 1993 section 418 or section 419 of the Maori Affairs Act 1953 Subsection (14) amended 1 July 2002 59(1) Te Ture Whenua Maori Amendment Act 2002/Maori Land Amendment Act 2002 by inserting the expression or sections 326A to 326D section 316 Subsection (14) amended 1 July 2003 262 Local Government Act 2002 by omitting the words the Local Government Act 1974 See sections 273 to 314 The original subsection (15) amended 1 April 1980 8(3) Local Government Amendment Act 1979 Subsection (15) substituted 1 October 1991 362 Resource Management Act 1991 Trees and structures on neighbouring land The heading Trees and structures on neighbouring land inserted 19 September 1975 Property Law Amendment Act 1975
129C: District Court may order removal or trimming of trees, or removal or alteration of structures injuriously affecting neighbour's land
1: For the purposes of this section,— Occupier Structure
a: Any building, wall, fence, or other improvement erected on the land by any person (not being the Crown) otherwise than pursuant to a building permit or building consent
b: Any building, wall, fence, or other improvement erected on the land by the Crown, not being a building, wall, fence, or other improvement for which a building permit or building consent Structure: this definition was amended 1 July 2003 262 Local Government Act 2002 by inserting the words or building consent building permit See sections 273 to 314 Tree
2: This section applies to—
a: Any land which may be used for residential purposes under rules in the relevant proposed or operative district plan ; and
b: Any land on which is erected any building used for residential purposes.
3: The occupier of any land to which this section applies may at any time apply to a District Court
4: Where the occupier of that other land is not the owner thereof both the occupier and the owner shall be joined as defendants to any such application.
5: On any such application the Court may make such order as it thinks fit, if, having regard to all the circumstances of the case, and, where required, to the matters specified in subsection (6)
a: Any actual or potential danger to the applicant's life or health or property, or to the life or health of any person residing with the applicant; or
b: Any undue obstruction of a view than an occupier would otherwise be able to enjoy from the applicant's land or from any building used for residential purposes erected on that land; or
c: Any other undue interference with the reasonable enjoyment of the applicant's land for residential purposes: Provided that, except for the purpose referred to in paragraph (a) made by a heritage protection authority under the provisions of Part 8 Resource Management Act 1991
6: In any case where the applicant alleges that a tree is obstructing his view or is otherwise causing injury or loss to him the Court, in considering whether to make an order under this section, shall have regard to the following matters:
a: The interests of the public in the maintenance of an aesthetically pleasing environment:
b: The desirability of protecting public reserves containing trees:
c: The value of the tree as a public amenity:
d: The historical, cultural, or scientific significance (if any) of the tree:
e: The likely effect (if any) of the removal or trimming of the tree on ground stability, the water table, or run-off.
7: The conditions of any such order may, if the Court thinks fit, include conditions requiring the applicant to give security or indemnity in respect of any costs, expenses, or damage.
8: The Court shall not make an order under this section unless it is satisfied—
a: That the tree or structure is causing or is likely to cause loss of or injury or damage to the applicant's life or health or property, or the life or health of any other person residing with the applicant; or
b: That the tree or structure is obstructing any view that an occupier of the applicant's land would otherwise be able to enjoy, or is otherwise causing injury or loss to the applicant by diminishing the value of the property or reducing the enjoyment of it for residential purposes— and that the hardship that would be caused to the applicant or to any other person residing with the applicant by the refusal to make the order is greater than the hardship that would be caused to the defendant or to any other person by the making of the order.
9: Where the application relates to any land on which a building intended for residential purposes has not been erected, the Court shall not make an order under this section unless it is satisfied that such a building will be erected on the land within a reasonable time. Unless the Court, having regard to all the circumstances of the case, otherwise determines, an order made in such a case shall not become operative unless and until the building is erected, and, if no such building is erected within a reasonable time, the order may be vacated on the application of any interested person.
10: An order may be made under this section whether or not the wrong being caused by the tree or structure constitutes a legal nuisance, and whether or not it could be the subject of any proceedings otherwise than under this section.
11: In determining whether or not to make an order under this section the Court shall have regard to the time when the applicant became the occupier of his land in relation to the time when the wrong commenced, but if the Court thinks fit, having regard to all the circumstances of the case, an order may be made notwithstanding that the applicant became the occupier of his land after the wrong commenced.
12: Every order made under this section shall provide that the reasonable cost of carrying out any work necessary to give effect to the order shall be borne by the applicant for the order, unless the Court is satisfied, having regard to the conduct of the defendant, that it is just and equitable to require the defendant to pay the whole or any specified share of the cost of such work.
13: If an order made under this section in respect of the removal or trimming of any tree, or of the removal, repair, or alteration of any structure, is not duly complied with within one month after the date of the order, or within such longer period as may be specified in the order or allowed by the Court, the applicant for the order may at any time thereafter cause the land in respect of which the order was made to be entered upon and the work necessary to give effect to the order to be carried out; and, unless the Court otherwise orders, any order of the Court made under subsection (12) Provided that, unless the parties otherwise agree, the applicant shall not exercise the rights conferred by this subsection except with the leave of the Court, which may be granted upon or subject to such conditions as the Court thinks fit, whether as to security or indemnity against any costs, expenses, or damage, the avoidance of or making good of any injury or damage, the disposal of the trees or structure or any part thereof, or otherwise.
14: This section shall bind the Crown, and shall apply to all land, including Maori land, Crown land, and public reserves. Sections 129B 129C inserted 19 September 1975 Property Law Amendment Act 1975 Subsection (2)(a) substituted 1 October 1991 362 Resource Management Act 1991 ; and Subsection (5) amended 1 October 1991 362 Resource Management Act 1991 by substituting the words made by a heritage protection authority under the provisions of Part 8 of the Resource Management Act 1991 by a local authority under any of the provisions of the Town and Country Planning Act 1977 Local Government Act 1974
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 thereto 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. 1908 No 152 s 46
11: Marriage settlements
131: Implied powers in tenants for life
In every conveyance of land by way of settlement on marriage there shall be implied the following powers That 1908 No 152 s 97 Section 131 amended 1 January 1957 89(2) Trustee Act 1956 by omitting the words in every tenant for life in possession of the property or of any undivided share thereof; or in his guardian, or in the committee of his estate, or, where there is no tenant for life in possession, then he or
132: Powers of trustees of settlement
1: There shall also be implied in the trustees of the settlement, at the request in writing of any tenant for life in possession, or his guardian or manager That they may dispose of the land comprised in the settlement, or any part thereof, either by way of sale or in exchange for other land of the like nature and tenure in New Zealand; or, where an undivided share in any land is in settlement, may concur in a partition of that land, and may give or take any money by way of equality of exchange or partition.
2: The money to arise from any such sale or to be received for equality of exchange or partition shall, with all convenient speed, be laid out in the purchase of other land of like nature and tenure in New Zealand; and any land so purchased or taken in exchange shall be settled in the same manner and subject to the same trusts, powers, and provisos as the land so sold or given in exchange.
3: The money so arising or so received shall, until laid out as aforesaid, be invested in securities authorised by law for the investment of trust funds, and the interest thereof shall be paid to the persons entitled to the rents and profits of the land comprised in the settlement. 1908 No 152 s 98 Subsection (1) amended 1 April 1970 Mental Health Act 1969 by substituting the word manager committee Marriage settlements by minors
133: Section 133 repealed 1 February 1977 57(1) Matrimonial Property Act 1976
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 thereof.
2: This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.
134A: Competency of married minors
A minor who is or has been married may, as if he were of full age, by deed appoint an attorney on his behalf for the purpose of executing any deed, or making any appointment otherwise than by will, or doing any other act he might himself execute or do. Section 134A inserted 1 February 1977 56 Matrimonial Property Act 1976
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 thereof 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 thereof 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 certificate in the form numbered 1 in Schedule 8
4: Where the donee of the power is a corporation aggregate, a certificate in the form numbered 2 in Schedule 8
4A: Where any such certificate relates to the execution of any instrument it shall be sufficient if the certificate is endorsed on the instrument and signed by the attorney or by any of the persons specified in subsection (4)
4B: Every person commits an offence and is liable on summary conviction to a fine not exceeding $100 who wilfully or negligently signs any certificate for the purposes of this section if the certificate is false in a material respect.
5: This section applies to powers of attorney executed in or out of New Zealand. 1908 No 152 s 100 Sections (3) (4) substituted (4A) (4B) inserted 19 September 1975 Property Law Amendment Act 1975
136: Irrevocable power of attorney for value
1: Where a power of attorney given for valuable consideration (whether executed in or out of New Zealand) 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.
2: This section applies only to powers of attorney created by instruments executed on or after the 1st day of January 1906. 1908 No 152 s 101
137: Power of attorney made irrevocable for fixed time
1: Where a power of attorney (whether executed in or out of New Zealand, and whether given for valuable consideration or not) is in the instrument creating the power expressed to be irrevocable for a fixed time therein specified, not exceeding one 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.
2: This section applies only to powers of attorney created by instruments executed on or after the 1st day of January 1906. 1908 No 152 s 102
138: Conveyance under power of attorney from person not in New Zealand
No person shall be entitled to object to the execution or proposed execution of a conveyance solely on the ground that the execution is under a power of attorney from a person not in New Zealand. 1908 No 152 s 103
139: Application to corporations
1: The provisions of this Part of this Act 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 of this Act.
2: The provisions of subsection (1) sections 44 and 399 of the Companies Act 1955 or sections 181 343 Companies Act 1993
3: The provisions of subsection (1) In subsection (2) substituted Subsection (2) amended 1 July 1994 2 Company Law Reform (Transitional Provisions) Act 1994 by inserting the words or sections 181 and 343 of the Companies Act 1993
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, if it thinks fit, 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: 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: Provided that 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 that 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 thereof instead of paying the same, or as to any other matters. 1908 No 152 s 105
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 from time to time directs,—
a: In the discharge of any encumbrance affecting the land directed to be sold; and, subject thereto,
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 from time to time invested in such securities as the Court may approve, and the interest and dividends thereof shall be paid to the parties interested. 1908 No 152 s 106
142: Costs in partition suits
In an action for partition the Court may make such order as it thinks just respecting costs up to the time of the hearing. 1908 No 152 s 107
143: Division of chattels
1: 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 or a Judge thereof for an order for division of the chattels or of any of them, according to a valuation or otherwise, and the Court or Judge may make such order and give such consequential directions as the Court or Judge thinks fit.
2: Where the value of the chattels concerned does not exceed $200,000 Subsection (2) amended 1 December 1961 Property Law Amendment Act 1961 by substituting the expression $4,000 $2,000 1 April 1980 16(1) District Courts Amendment Act 1979 13 November 1989 District Courts Amendment Act 1989 $200,000 1 July 1992 19(1) District Courts Amendment Act 1991
14: Apportionment
144: Interpretation
In this Part of this Act, unless the context otherwise requires,— Annuities Dividends dividends Rent 1908 No 152 s 108(1)
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. 1908 No 152 s 108(2)
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. 1908 No 152 s 108(3)
147: Recovery of apportioned parts
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 thereto respectively: Provided that 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 of this Act 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 thereto under this Part of this Act. 1908 No 152 s 108(4)
148: Exceptions and application
1: Nothing in this Part of this Act shall render apportionable any annual sums payable under policies of assurance of any description.
2: This Part of this Act does not extend to any case in which it is expressly stipulated that apportionment shall not take place. 1908 No 152 s 108(5), (6), (7)
15: Debts charged on real estate
149: Devisee, etc, of real estate not to claim payment of mortgage out of personal estate
1: Where a person dies seised of or entitled to any land that is at the time of his death charged with the payment of any sum or sums of money by way of mortgage, and that person has not by his will or by deed or other document signified any contrary or other intention, the devisee or other person to or on whom the land is devised or devolves shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of that person, but the land so charged shall, as between the different persons claiming through or under the deceased, be primarily liable to the payment of all mortgage debts with which the same is charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole thereof.
2: A general direction in a will that the debts or that all the debts of the testator be paid out of his personal estate, or out of his residuary real and personal estate, or out of his residuary real estate, shall not be deemed to signify an intention contrary to or other than the rule hereby established, but such an intention must be further signified by words expressly or by necessary implication referring to all or some of the testator's debts charged by way of mortgage on any part of his land.
3: Nothing in this section shall affect or diminish any right of the mortgagee of any such lands to obtain full payment or satisfaction of his mortgage debt, either out of the personal estate of the deceased or otherwise.
4: Nothing in this section shall apply to any will made on or after the 1st day of January 1971. 1908 No 152 s 109 Subsection (4) inserted 1 January 1971 36(3) Administration Act 1969
16: Rentcharges 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 rentcharge 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 thereof, is unpaid for 21 days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid.
3: If at any time the annual sum or any part thereof is unpaid for 40 days next after the time appointed for any payment in respect thereof, 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 thereof, and take the income thereof, until thereby or otherwise the annual sum, and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by 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 thereof, 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 thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the 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 the 1st day of 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 thereof.
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. 1908 No 152 s 110 Discharge of encumbrances on sale
151: Provision by Court for encumbrances on sale
1: Where land subject to any encumbrance, whether immediately payable or not, is sold by the Court, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the encumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reason thinks fit to require a larger additional amount.
2: Thereupon the Court may, if it thinks fit, and either after or without any notice to the encumbrancer, as the Court thinks fit, declare the land to be free from the encumbrance, and make any order for conveyance or vesting order proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.
3: After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof. 1908 No 152 s 111
16A: Debentures issued by companies
Part 16A inserted 1 July 1994 Property Law Amendment Act 1993
151A: Interpretation
In this Part of this Act, company
a: A company within the meaning of section 2 of the Companies Act 1955
b: A company within the meaning of section 2 Companies Act 1993 Part 16A inserted 1 July 1994 Property Law Amendment Act 1993
151B: Perpetual debentures
Notwithstanding any rule of equity, a condition contained in any debentures or in any deed for securing any debentures, issued or executed by a company, whether before or after the commencement of this section, is not invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long. Part 16A inserted 1 July 1994 Property Law Amendment Act 1993
151C: Power to reissue redeemed debentures in certain cases
1: Where either before or after the commencement of this section a company has redeemed any debentures previously issued, then,—
a: Unless any provision to the contrary, whether express or implied, is contained in the case of a company within the meaning of section 2 of the Companies Act 1955 section 2 Companies Act 1993
b: Unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled,— the company shall have, and shall be deemed always to have had, power to reissue the debentures, either by reissuing the same debentures or by issuing other debentures in their place.
2: On a reissue of redeemed debentures the person entitled to the debentures shall have, and shall be deemed always to have had, the same priorities as if the debentures had never been redeemed.
3: Where a company has either before or after the commencement of this Act deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit while the debentures remained so deposited.
4: The reissue of a debenture or the issue of another debenture in its place under this section, whether the reissue or issue was made or after the commencement of this section, whether the reissue or issue was made before or after the commencement of this section, is not to be treated as the issue of a new debenture for the purpose of any provision limiting the amount or number of debentures to be issued. Part 16A inserted 1 July 1994 Property Law Amendment Act 1993 Subsection (4) substituted 20 May 1999 7 Stamp Duty Abolition Act 1999
151D: Specific performance of contracts to subscribe for debentures
A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance. Part 16A inserted 1 July 1994 Property Law Amendment Act 1993
17: Service of notices
152: Service of notices
1: 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 New Zealand. 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 , unless the intended recipient of the notice proves that, otherwise than through any fault on his own part, it was not delivered at that time
2: If the person is absent from New Zealand, the notice may be delivered as aforesaid to his agent in New Zealand. If he is deceased, the notice may be delivered as aforesaid to his personal representative.
3: If the person is not known, or is absent from New Zealand and has no known agent in New Zealand, 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 the foregoing provisions of this section, 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 thereof.
5: This section does not apply to notices served in proceedings in the Court.
6: In this section the expression the Court
a: In any case where any notice relates to any sum of money, being a sum not exceeding $200,000
b: In any other case, the High Court
6A: Without limiting the generality of the foregoing provisions of this section, this section applies to every notice to be served for the purposes of section 92 118
7: Except as provided by subsection (6A) 1939 No 6 s 8 1950 No 27 s 6 Subsection (1) amended 13 November 1982 Property Law Amendment Act 1982 by inserting the words , unless the intended recipient of the notice proves that, otherwise than through any fault on his own part, it was not delivered at that time Subsection (6)(a) amended 1 December 1961 Property Law Amendment Act 1961 by substituting the expression $10,000 $4,000 1 April 1980 16(1) District Courts Amendment Act 1979 13 November 1989 District Courts Amendment Act 1989 $200,000 1 July 1992 19(1) District Courts Amendment 1991 The words District Court substituted Magistrates' Court 1 April 1980 18(2) District Courts Amendment Act 1979 High Court substituted Supreme Court 1 April 1980 12 Judicature Amendment Act 1979 Subsection (6A) inserted 11 December 1982 Property Law Amendment Act 1982 Subsection (7) amended 11 December 1982 Property Law Amendment Act 1982 by substituting the words Except as provided by subsection (6A) of this section This
18: Miscellaneous
153: Restriction on validation of instruments
Where any instrument executed before the 4th day of August 1908, being the date of the commencement of the Property Law Act 1908 1908 No 152 s 121
154: Protection of solicitors and trustees acting under this Act
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 thereof, 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. 1908 No 152 s 122
155: Repeals and savings
1: The enactments specified in Schedule 6
2: The enactments specified in Schedule 7
3: All matters and proceedings commenced under any of the said enactments and pending or in progress at the commencement of this Act may be continued, completed, and enforced under this Act.
4: All instruments, acts of authority, and acts of parties, and all periods of time, which originated or were subsisting under any of the said enactments, or under any enactment theretofore in force, and are subsisting or in force on the commencement of this Act, shall enure for the purposes of this Act as if they had originated under this Act, and accordingly shall, where necessary, be deemed to have so originated, but not so as to extend any period of time that began to run before the commencement of this Act.
5: Neither the repeal of the enactments specified in the said Schedule 7
a: Any deed or instrument made, signed, or acknowledged, or any proceeding taken or pending, or anything done or suffered, or any estate, right, title, interest, or benefit created, conferred, or acquired under or by virtue of any such enactment; or
b: Any obligation or duty undertaken or imposed, or any forfeiture incurred, expressly or by implication, under or by virtue of any deed or instrument as aforesaid or under any such enactment.
6: In particular the repeal of sections 7, 8, 21, 22, 23, and 50 of the Property Law Act 1908 section 35 of that Act
7: Any alteration made in the law by this Act, whether by the repeal of an enactment or otherwise, shall not, unless otherwise expressly provided by this Act, affect—
a: Any right accrued, or obligation incurred, before the commencement of this Act under the law so altered; or
b: The validity or invalidity, or any operation, effect, or consequence, of any instrument executed or made, or of anything done or suffered before the commencement of this Act,— and, unless as aforesaid, the law existing before such commencement shall remain in full force and effect for the purpose of governing and construing all instruments executed before its commencement and such instruments as aforesaid shall be read and construed and have only the effect and consequences given to them under that law.
8: Any provision of Te Ture Whenua Maori Act 1993 1908 No 152 ss 1(3), 124