Real Property (Covenants) Amendment Act 1986 (NSW)
REAL PROPERTY (COVENANTS) AMENDMENT ACT 1986
No. 71
NEW SOUTH WALE&
TABLE OF PROVISIONS
1. Short title
2. Commencement
3. Amendment of Act No. 25, 1900
SCHEDULE I—AMENDMENTS TO THE REAL PROPERTY ACT 1900
| REAL PR O PER TY (COV ENA NTS) A M E N D M E N T ACT | 1986 No. 71 |
NEW SO UTH WALES
Act No. 71, 1986
An Act to am end the Real Property Act 1900 so as to provide for the enforcem ent o f certain charges im posed on land. [Assented to, 2 1 May 1986)
Act No, 71
Real Property (Covenants) Amendment 1986
BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent o f the Legislative Council and Legislative Assembly of New South Wales in Parliam ent assembled, and by the authority o f the same, as follows:
Short title
1. This Act may be cited as the “ Real Property (Covenants) Amendment
| Act | 1986” . |
Commencement
2. (1) Sections I and 2 shall comm ence on the date o f assent to this
Act.
| (2) | Except as provided by subsection (1), this Act shall commence on the |
day appointed and notified under section 2 (2) o f the Conveyancing
(Covenants) Am endm ent Act 1986.
Amendment of Act No. 25, 1900
3. The Real Property Act 1900 is am ended in the m anner set forth in
Schedule 1.
SCHEDULE 1
(Sec. 3)
AM ENDM ENTS TO TH E REAL PRO PERTY ACT 1900
(1) Section 3 (Interpretation)—
| (a) | Section 3 (1), definitions of “Covenant charge”, “Covenant chargee” , “ Covenant charger” — |
After the definition o f “ Consular officer” , insert:
“ Covenant charge”— Any charge on land created under section
88f of the Conveyancing Act 1919 for securing the
payment o f money.
“ Covenant chargee”— The proprietor o f a covenant charge.
“ Covenant charger”— The proprietor o f land or o f any estate
or interest in land subject to a covenant charge.
Real Property (Covenants) Amendment 1986
SCHED ULE \— continued
| AM ENDM ENTS TO TH E REAL PR O PER TY ACT | continued |
| (b) | Section 3 (1 ), definition o f “ M ortgage”— After “ land” , insert “ (other than a covenant charge)” . |
(2) Section 13f (M ortgages— application of sec. 39a)—
| (a) | Section 13p(a)— |
After “ 1897” , insert “ or, in the case o f a covenant charge, in the Register o f Causes, W rits and O rders kept pursuant to the Conveyancing Act 1919” .
| (b) | Section 13p(b)— | |
|
chargee” .
(3) Section 13m (Registration of instruments executed before creation of
folio)—
| Om it “ or charge” wherever occurring, insert instead | charge or |
| covenant charge” . |
(4) Section 14 (Application to bring land under the Act)—
(a) Section 14 (3) (d)—
Om it “ or” where lastly occurring.
| (b) | Section 14 (3) (dl)— After section 14 (3) (d), insert: |
(d l) where the land to which the application relates is subject to a covenant charge, unless the covenant chargee consents to the application; or
(5) Section 33 (Issue of certificates of title)—
Section 33 (5) (b)—
Om it “or registered chargee” , insert instead “ , registered chargee or covenant chargee” .
4 Act No. 71
Real Property (Covenants) Amendment 1986
SCHEDULE I— continued
AM ENDM ENTS TO THE REAL PROPERTY ACT i900— continued
(6) Section 33a (Delivery, etc., of instruments in the custody of the
Registrar-General)—
Section 33a (4a)—
| Om it “ o r charge” wherever occurring, insert instead | charge or |
| covenant | charge” , |
(7) Section 39a (Treatment of certain instruments not in approved form)—
(a) Section 39a (1) (b)—
After “ 1897” , insert “ or, in the case o f a covenant charge, in the Register o f Causes, W rits and O rders kept pursuant to the Conveyancing Act 1919” .
(b) Section 39a (1) (c)—
Om it “ or a charge” , insert instead “ , charge or covenant charge” .
(c) Section 39a (2)—
Om it “ or chargee” wherever occurring, insert instead “ , chargee or covenant chargee” .
(d) Section 39a (2) (b), (c), (3)—
| O m it “ or charge” wherever occurring, insert instead | charge or |
| covenant charge” . |
(e) Section 39a (2) (c)—
O m it “ or charges” , insert instead “ , charges or covenant charges” .
(0 Section 39a (5)—
O m it the subsection, insert instead:
(5) Except as provided by section 101 o f the Conveyancing Act 1919, where a mortgage or covenant charge is recorded under this section, anything done with respect to foreclosure because o f a default in payment o f an am ount secured by the mortgage or charge, in so far as the thing done relates to land under the provisions o f this Act, shall be done in accordance with those provisions, and not otherwise.
Real Property (Covenants) Amendment 1986
| SCHEDULE | {— continued |
| AM ENDM ENTS TO TH E REAL PROPERTY ACT | continued |
(g) Section 39a (7)—
After “ 1897” , insert “ or, in the case o f a covenant charge, in the Register o f Causes, W rits and Orders kept pursuant to the Conveyancing Act 1919” .
(h) Section 39a (8)—
| Om it “ or charger” , insert instead | charger or covenant |
| charger” . |
(8) Section 53 (Land under the provisions of this Act— how leased)—
Section 53 (4)—
Om it the subsection, insert instead:
(4) A lease o f land which is subject to a mortgage, charge or covenant charge is not valid or binding on the mortgagee, chargee or covenant chargee unless the mortgagee, chargee or covenant chargee has consented to the lease before it is registered.
(9) Section 54 (Lease may be surrendered by execution of surrender in
approved form)—
Section 54 (5)—
Om it the subsection, insert instead:
(5) A lease subject to a mortgage, charge or covenant charge shall not be so surrendered without the consent o f the mortgagee, chargee o r covenant chargee.
(10) Part VII, D ivision 3, heading—
Om it the heading, insert instead:
DIVISION 3— Mortgages, charges and covenant charges
(11) Section 56 (Land under this Act—-how mortgaged or encumbered)—
Section 56 (8)—
After section 56 (7), insert:
(8) This section docs not apply to or in respect o f a covenant
charge.
6 Act No. 71
Real Property (Covenants) Amendment 1986
| SCHEDULE | {— continued |
| AM ENDM ENTS TO TH E REAL PROPERTY ACT | continued |
(12) Section 57 (Procedure on default)—
(a) Section 57 (1)—
| O m it “ or charge” , insert instead | charge or covenant charge” , |
(b) Section 57 (2)—
Om it “ or chargee” , insert instead ” , chargee or covenant chargee” .
(c) Section 57 (2) (a)—
Before “ default” , insert “ in the case of a mortgage or charge,” .
| (d) | Section 57 (2 ) ( a t)— |
After section 57 (2) (a), insert:
(a l) in the case o f a covenant charge, default has been made
in—
(i) the payment, in accordance with the terms of the judgm ent to which the covenant charge relates, o f the principal, interest or other money the payment o f which is secured by the covenant charge; or
(ii) the payment, in accordance with the terms of that judgm ent, o f any part o f that principal, interest or other money;
(e) Section 57 (2) (b) (ii)—
Before “ the default” , insert “ in the case o f a mortgage,” .
(0 Section 57 (2) (b), (3) (b), (d)—
Om it “or charger” wherever occurring, insert instead “ , charger or covenant charger” ,
(g) Section 57 (3) (d)—
Om it “ or charge” , insert instead “ , charge o r judgm ent” .
Real Property (Covenants) Amendment 1986
| SCHEDULE | 1— continued |
AM ENDM ENTS TO TH E REAL PR O PER TY ACT 1900— continued
(13) Section 58 (Power to sell)—
(a) Section 58 (I), (3)—
| Om it “ o r chargee” wherever occurring, insert instead | chargee |
| or covenant chargee” . |
(b) Section 58 (1), (3)—
O m it “ or charger” wherever occurring, insert instead “ , charger o r covenant charger” ,
(c) Section 58 (3)—
| O m it “ or charges” , insert instead | charges or covenant |
| charges” . |
(14) Section 58a (Dispensing with notice or lapse of time)—
Section 58a (2)—
After “ section” , insert “ does not apply to covenant charges but” .
(15) Section 59 (Registration of transfer by mortgagee, chargee or covenant
chargee)—
(a) Om it “or chargee” , insert instead “ , chargee or covenant chargee” , (b) Om it “or charger” , insert instead “ , charger or covenant charger” ,
| (c) | Omit “or charge” wherever occurring, insert instead “, charge or covenant charge” . |
(16) Section 60 (In case of default, entry and possession, ejectment)—
(a) Om it “ or chargee”, insert instead “ , chargee o r covenant chargee” .
| (b) | Omit “or charge” wherever occurring, insert instead charge or | |
|
(17) Section 61 (Application for foreclosure order)—
(a) Section 61 (I), (2)—
After “ mortgage” wherever occurring, insert “ or covenant charge” .
8 Act No, 71
Real Property (Covenants) Amendment 1986
SCHED ULE 1— continued
AM ENDM ENTS TO TH E REAL PRO PERTY ACT I900~continued
(b) Section 61 (1)—
After “ mortgagee” , insert “ or covenant chargee, as the case may be,” .
(c) Section 61 (2)—
After “ mortgaged” , insert “ o r charged” .
(d) Section 61 (2), (2a)—
After “ m ortgagor” wherever occurring, insert “ or covenant charger” .
(e) Section 61 (2), (2a) (a) (i)—
After “ mortgagee” wherever occurring, insert “ or covenant chargee” .
(IS) Section 62 (Foreclosure order)—
(a) Section 62 (2)—
After “ mortgagee” , insert “ or covenant chargee” .
(b) Section 62 (2)—
O m it “ in the land m entioned in such order” , insert instead “ or covenant charger in the land m entioned in the order and, in the case o f mortgaged land,” .
| (19) | Section 63 (Suspension of mortgagor's rights as landlord)— (a) Section 63— |
| Om it “ or chargee” wherever occurring, insert instead | chargee |
| o r covenant chargee” . |
(b) Section 63 (1), (3)—
| O m it "o r charger” wherever occurring, insert instead | charger |
| o r covenant charger” . |
(c) Section 63 (1)—
| Om it “ or charge” , insert instead | charge or covenant charge” . |
Real Property (Covenants) Amendment 1986
| SCHEDULE | 1— continued |
AM ENDM ENTS TO TH E REAL PR O PER TY ACT \900— continued
(20) Section 65 (Discharge of mortgages, charges and covenant charges)—
(a) Section 65—
| O m it “ o r charge” wherever occurring, insert instead | charge or |
| covenant charge” . |
(b) Section 65 (1)—
| Om it “or chargee” , insert instead | chargee or covenant |
| chargee” . |
(21) Section 76 (Transferee of land subject to mortgage, etc., to indemnify
transferor)—
| (a) O m it “ or charge” wherever occurring, insert instead | charge or |
covenant charge” .
| (b) | After “same” insert “(or, in the case of a covenant charge, any interest payable in accordance with the term s o f the judgm ent to which the covenant charge relates)” . |
| (c) | Omit “such instrument”, insert instead “the mortgage, charge or covenant charge” . |
| (d) | Omit “therein contained”, insert instead “contained in the mortgage or charge” . |
(22) Section 124 (Registered proprietor protected against ejectment except in
certain cases)—
Section 124 (1) (b)—
O m it the paragraph, insert instead:
| (b) | The case of a chargee or covenant chargee as against a charger or covenant charger in default. |
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