"encumbrance" means all mortgages, charges, estates or interests; and encumbrance has a corresponding meaning, and includes every person entitled to the benefit of an encumbrance, or entitled to require the payment or performance thereof;
"executors" and "administrators" of a deceased person mean respectively the persons to whom probate of the will or letters of administration of the estate of the deceased has been granted by the proper court, whether for general, special or limited purposes; and "executors" includes executors by right of representation;
"fine" includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium or foregift;
"income", when used with reference to land, includes rents and profits;
"instrument" includes a deed and a will and every document registered or capable of registration under the Land Transfer Act, or in respect of which any memorial is by that Act directed, required or permitted to be entered in the Register Book or endorsed on any registered instrument;
"land" includes all estates and interests in land;
"lease" includes a sub-lease and an agreement for a lease or sub-lease or for a tenancy and "lessee" and "lessor" have corresponding meanings;
"rent" includes yearly or other rent, toll, duty, royalty, or other reservation by measurement or otherwise;
"sale" means a sale properly so called;
"transfer" includes a transfer registered or capable of being registered under the provisions of the Land Transfer Act, or any other Act and also includes any assignment, appointment, lease, settlement or other transfer or assurance of any property whether or not the same is so registered or is capable of being so registered and "transfers" or "transferred" have corresponding meanings; (Cap. 131)
"trust" and "trustee" have the same meaning as in the Trustee Act; (Cap. 65)
"will" includes codicil.
Application of Act and savings
3 .-(1) This Act shall be read and construed so as not to conflict with the provisions either of the Land Transfer Act, or the Agricultural Landlord and Tenant Act. (Cap. 131, Cap. 270.)
(2) Subject to the provisions of subsection (1) and except as otherwise expressly provided in this Act, all of the provisions of this Act shall, as far as they are applicable, apply to land and instruments subject to the provisions of the Land Transfer Act and of the Agricultural Landlord and Tenant Act. (Cap. 131, Cap. 270.)
(3) Without prejudice to the operation of the Interpretation Act, any alteration, by this Act, of the law, shall not, unless otherwise expressly provided by this Act affect- (Cap. 7.)
(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 that date; or
(c) any action, proceeding or thing pending on that date or uncompleted on that date and that action, proceeding and thing may be carried on and completed as if the law had not been altered.
Formalities of deed
4.-(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 not being a party to the deed, but no particular form of words shall be requisite for the attestation.
(2) Sealing of a deed is not necessary except in the case of a deed executed by a corporation under its common or official seal.
(3) Formal delivery and indenting are not necessary in any case.
(4) Every instrument expressed or purporting to be an indenture or a deed or an agreement under seal or otherwise purporting to be a document executed under seal and which is executed as required by this section shall have the same effect as a deed duly executed in accordance with the law in force immediately prior to the commencement of this Act.
(5) Every instrument registered or capable of being registered under the provisions of the Land Transfer Act, shall upon execution have the effect of a deed made between the parties executing the same. (Cap. 131.)
Execution of instruments by or on behalf of corporations
5 .-(1) A deed shall be deemed to have been duly executed by a corporation aggregate in favour of a purchaser, if the seal of that corporation is affixed to the deed in the presence of and attested by a person who is its clerk, secretary or other permanent officer or his deputy, and a member of its board of directors, council or other governing body.
(2) Where a seal purporting to be the seal of a corporation aggregate has been affixed to a deed, attested by a person and a member purporting to be such a person and such a member as is referred to in subsection (1), the deed shall be deemed to have been duly executed and to have taken effect accordingly.
(3) The board of directors, council or other governing body of a corporation aggregate may, by resolution or otherwise, appoint an agent either generally or in any particular case, to execute on behalf of the corporation any agreement or other instrument not under seal in relation to any matter within the powers of the corporation.
(4) When a person is authorised under a power of attorney or under any statutory or other power to execute any instrument in the name of, or on behalf of a corporation, sole or aggregate, he may as attorney execute the instrument by signing the name of the corporation and adding the words "by its attorney" and his own signature in the presence of at least one witness and, subject to compliance by such attorney with the provisions of subsection (3) of section 115, an instrument so executed shall take effect and be valid as if duly executed by the corporation.
(5) Where a corporation aggregate is authorised under a power of attorney or under any statutory or other power to execute any instrument in the name or on behalf of any other person (including
Description of deeds
Exercise of powers
Leases need not be by deed
Construction of expressions and as to time in contracts etc.
(a) "month" means a calendar month;
(b) "person" includes a corporation;
(c) the singular includes the plural and vice versa;
(d) the masculine includes the feminine and vice versa;
(e) every word in either of the said numbers or genders shall be construed as including a body corporate.
(2) Stipulations in a contract, as to time or otherwise, that according to rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect at law in accordance with the rules of equity.
Uses not necessary
Estates tail abolished
(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) the expression "estate tail" includes that estate in fee into which an estate tail is converted where the issue in tail is barred, but the persons claiming estates by way of remainder are not barred; also an estate in fee voidable or determinable by the entry of the issue in tail; but does not include the estate of a tenant in tail after possibility of issued extinct.
Freehold in future may be created
Creation by deed of estate in chattel real
When contingent remainders capable of taking effect
17 .-(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 two estates vested in the same person shall prevent the merger of those two estates.
Rights of entry, etc.
Partial release of land from rent
Corporations may hold as joint tenants
26 .-(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 two 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.
Disclaimer of powers
27 .-(1) A person to whom is given any power, whether coupled with an interest or not, may by deed, disclaim, release or contract not to exercise the power, and after such disclaimer, release or contract shall not be capable of exercising or joining in the exercise of the power.
(2) On any such disclaimer, release or contract the power may be exercised by the other or others, or the survivor or survivors of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.
(3) This section applies to powers created by instruments coming into operation either before or after the commencement of this Act.
Intermediate income of contingent or executory gifts
Receipts for income by married infants
"Heirs" and other words interpreted
30 .-(1) Where by or under the terms of any instrument coming into operation after the commencement of this Act, any property would except for the provisions of this Act, vest in -
(a) the heir or heirs of any person; or
(b) the next of kin of any person, such property shall vest in the persons who on the death of the person intestate would be beneficially entitled to his real and personal estate upon intestacy, and in the same shares.
(2) This section applies only if and so far as a contrary or other intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions therein contained.
"Heirs of the body" and other words interpreted
31 .-(1) Where by or under the terms of any instrument coming into operation after the commencement of this Act, any property would, except for the provisions of this Act, vest in -
(a) the heir or heirs of the body of any person; or
(b) the heir or heirs male of any person or the heir or heirs male of the body of any person; or
(c) the heir or heirs female of any person, or the heir or heirs female of the body of any person,
the property shall vest as follows:-
in case (a) in the issue of that person as tenants in common per stirpes; and
in case (b) in the sons and issue of sons of that person as tenants in common per stirpes; and
in case (c) in the daughters and the issue of daughters of that person as tenants in common per stirpes.
The perpetuity period
Capacity to procreate or bear a child
(2) Where this section applies, there is a presumption, rebuttable by sufficient evidence to the contrary tendered at the time at which the matter falls for decision (but not subsequently), that -
(a) a woman who has attained the age of fifty-five years is incapable of bearing a child; and
(b) a male or female who has not attained the age of twelve years is incapable of procreating or bearing a child.
(3) Where this section applies, medical evidence that a male or female of any age is or at a relevant date was or will be incapable of procreating or bearing a child is admissible in proceedings in order to establish that incapacity, and the court may accept any such evidence of a high degree of improbability of procreating or childbearing as it thinks proper as establishing the incapacity.
(4) Any decision of the court, in which any such presumption as is mentioned in subsection (2) is applied or in which any such evidence as is mentioned in subsection (3) is accepted remains effective notwithstanding the subsequent birth of a child; but if a limitation, that is not itself invalid as infringing the rule against perpetuities, confers upon that child or his spouse, or upon his issue or the spouse of any of his issue, a right to any property, that right (including any right to follow or trace the property) is not affected by the decision of the court.
Wait and see rule
38 .-(1) A limitation shall not be declared or treated as invalid, as infringing the rule against perpetuities, unless and until it is certain that the interest that it creates cannot vest within the perpetuity period or, if the limitation creates or confers a general power of appointment over or in connexion with property, that the power cannot become exercisable within the perpetuity period, but if the power becomes exercisable, within that period, it is valid.
(2) Where a limitation creates a power exercisable over or in connexion with any property, whether that power be a special power of appointment, or a power of advancement or of distribution under a discretionary trust, or any other power (not being a general power of appointment or a power that is exempted from the application of the rule against perpetuities by section 25 of the Trustee Act), that limitation is valid, so far as the rule against perpetuities is concerned - (Cap 65)
(a) if the power is exercisable only during the perpetuity period; or
(b) if and to the extent that the power is exercised during the perpetuity period.
(3) Nothing in this section makes any person a life in being for the purpose of ascertaining the perpetuity period unless that person would have been reckoned a life in being for that purpose if this section had not been enacted.
Power of court to make declaration as to validity of limitations
(2) The court may, on an application under subsection (1), make a declaration, on the basis of facts existing and events that have occurred at the time the declaration is made, as to the validity or otherwise of the limitation in respect of which the application is made; but the court shall not make a declaration in respect of any limitation the validity of which cannot be determined at the time at which the court is asked to make the declaration.
Invalid age contingencies
(2) This section applies to any instrument other than a will executed after the commencement of this Act and to any testamentary appointment (whether made in exercise of a general or special power), devise or bequest contained in the will of a person dying after that date, whether the will was made before or after that date; but, in the case of an instrument executed, and the will of a
(b) a limitation in favour of a person who attains, or of a class the members of which attain, according to the limitation, a vested interest on or after the death of the survivor of that person and his spouse.
(a) an option granted to a lessee in respect of the property demised, being an option exercisable only during the currency of the lease or within one year after the expiration thereof and enabling the lessee or the lessee for the time being to purchase the freehold or other superior interest in the demised property; or
(b) an option to acquire an interest in land, not being an option to which paragraph (a) refers.
(2) An option to which paragraph (b) of subsection (1) refers, and which according to its terms is, or may be, exercisable at a date more than twenty-one years from the date of its grant, becomes void, on the expiry of twenty-one years from the date of its grant, as between the original parties to that grant and all persons claiming through them.
(3) Nothing in this section affects an option for renewal contained in a lease or a pre-emptive right to acquire an individual unit or individual units of accommodation in a building containing several units.
Application of the rule to possibilities of reverter, rights of entry and resulting trusts
46 .-(1) The rule against perpetuities as amended by this Part applies -
(a) to a possibility of reverter in land consequent upon a fee simple determinable; and so that, if the fee simple does not determine within the perpetuity period, it thereafter continues as a fee simple absolute;
(b) to a right of entry for condition broken the exercise of which may determine a fee simple subject to a condition subsequent; and so that, if the right of entry is not exercised
within the perpetuity period, the fee simple thereafter continues as a fee simple absolute; and
(c) to an interest in property by way of resulting trust analogous to a possibility to a reverter in land; and so that, if the initial trust does not determine within the perpetuity period, the interest it creates thereafter continues as an absolute interest.
(2) The provisions of subsection (1) apply as therein provided, whether the determinable or conditional estate or interest is charitable or not, except that the rule against perpetuities does not apply to a gift over from one charity to another.
Powers of appointment
Accumulations of income
48 .-(1) Where property is settled or disposed of in such manner that the income thereof may or shall be accumulated wholly or in part, the power or direction to accumulate that income is valid if the disposition of the accumulated income is, or may be, valid and not otherwise.
(2) Nothing in this section affects the right of any person or persons to terminate an accumulation that is for his or their benefit or any jurisdiction or power of the court to maintain or advance out of accumulations or any powers of a trustee under Part V of the Trustee Act. (Cap 65).
(3) For the avoidance of doubt, it is hereby declared that this section has effect only as provided by section 34.
Rule in Whitby v. Mitchell abolished
Superannuation funds, etc.
