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Ord. No. 62/84
Other covenants and conditions. Second Schedule.
Standard forms.
1925 c. 20, s. 206. Third Schedule.
Protection of solicitors etc. 1925 c. 20, s. 182.
Benefit of
CONVEYANCING AND PROPERTY
(2) The covenants implied under this section may be excluded, varied or extended in the assignment or legal charge.
(3) This section shall not affect any assignment or legal mortgage executed before the commencement of this section.
36. The covenants and conditions mentioned in the Second Schedule, or any of them, may be incorporated into any instrument by reference.
37. A deed, agreement or receipt in the appropriate form given in the Third Schedule shall, in regard to form and expression, be sufficient.
38. (1) The powers given by this Ordinance to any person and the covenants and conditions implied by, or incorporated by reference under, this Ordinance in any instrument shall be deemed in law proper to be included in the appropriate instrument and a solicitor, acting in good faith and with reasonable diligence, shall not be liable for failing to exclude those powers, covenants or conditions or to insert others in their place:
Provided that this subsection shall not imply that the inclusion of other powers, covenants or conditions is improper.
(2) A person acting in a fiduciary position, whether with or without a solicitor, shall be entitled to the protection afforded to a solicitor by subsection (1).
39. (1) A covenant relating to any land of the covenantee shall be deemed, covenants relating unless the contrary intention is expressed, to be made with the covenantee and his
successors in title and persons deriving title under him or them.
to land.
1925 c. 20, s. 78.
Burden of
(2) This section shall apply to covenants entered into before or after the commencement of this section.
40. (1) A covenant relating to any land of a covenantor or capable of being covenants relating bound by him, shall be deemed, unless the contrary intention is expressed, to be made by the covenantor on behalf of himself, his successors in title and persons deriving title under or through him or them.
to land. 1925 c. 20, s. 79.
Enforcement of covenants.
(Cap. 128.)
(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) This section shall apply to covenants entered into before or after the commencement of this section.
41. (1) Notwithstanding any rule of law or equity, a covenant shall not be unenforceable for the reason only--
(a) that the covenant requires the covenantor, his successors in title or persons deriving title under him or them to expend money or is otherwise positive in nature; or
(b) that the covenant is between owners of the same land; or
(c) where the covenant is registered in the Land Office under the Land Registration Ordinance, that the successors in title to the covenantor or persons deriving title under him or them had no notice of the covenant.
(2) A covenant requiring the expenditure of money or which is otherwise positive in nature shall not bind a person after he has ceased to have any estate or interest in the land affected by that covenant except in respect of any breach of that covenant committed by him before that cessation.
CONVEYANCING AND PROPERTY
Ord. No. 62/84
A399
(3) A covenant which does not require the expenditure of money or is otherwise restrictive in nature and which is enforceable against the owner for the time being of land shall be enforceable in the same manner and to the same extent against any lessee or occupier of that land.
(4) This section shall apply to covenants entered into before and after the commencement of this section.
42. (1) Any covenant by deed entered into and taking effect after an agreement for the Crown lease of the land affected by the deed but before the issue of the Crown lease of that land shall have the same force and effect in relation to that land after the issue of that Crown lease as it had immediately before that issue.
Saving of covenants entered into prior to issue of Crown lease.
(2) Where any deed referred to in subsection (1) is registered under the Land (Cap. 128.) Registration Ordinance, that registration shall continue in force after the issue of, and in relation to, the Crown lease of the land affected by the deed with effect from the date of registration; and the Land Officer may make an entry directing attention to the provisions of this section in the Land Office registers relating to any land affected by that deed.
(3) Where a Crown lease expires and either renewed or replaced by a new Crown lease relating to the same land, any covenant relating to that land shall, unless the contrary intention is expressed, continue to have effect.
(4) Section 15(c) of the Crown Leases Ordinance is amended by deleting "such (Cap. 40.) as were created by an instrument and were not thereby expressed to continue after the date of expiration of the renewable Crown lease." and substituting the following-
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(i) in the case of a covenant, a contrary intention is expressed; and
(ii) in the case of any other right, easement, tenancy or burden created by an instrument, it is not expressed in that instrument to continue after the date of the expiration of the renewable Crown lease.".
43. (1) Any agreement or covenant relating to land or other property, express or implied, with 2 or more persons jointly to do any act for their benefit shall be deemed, unless the contrary intention is expressed, to include an obligation to do that act for the benefit of the survivor or survivors of them and for the benefit of any other person to whom the right to sue on the agreement devolves; and shall be construed as being made with each of them.
(2) This section applies only to agreements entered into after 22 June 1979.
PART V
MORTGAGES
Effect of agreement with 2 or more jointly.
1925 c. 20, s. 81.
estate.
44. (1) After the commencement of this section, a mortgage of a legal estate, Mortgage of legal including any second or subsequent mortgage of that legal estate, may be effected at law only by a charge by deed expressed to be a legal charge.
(2) Under a mortgage effected by a legal charge, the mortgagor and the mortgagee shall, subject to this Ordinance, have the same protection, powers and remedies (including but not limited to those relating to foreclosure and the equity of redemption but excluding the power of the mortgagee to enter into possession before any default by the mortgagor) as if the mortgage had been effected by way of assignment of the legal estate before the commencement of this section.
(3) Upon the commencement of this section, a mortgage of a legal estate effected by way of assignment of the legal estate before the commencement of this section shall be deemed, for the purposes of this Ordinance, to be reassigned and discharged and replaced by a legal charge in the same terms and having the same validity and priority, subject to this Ordinance, as the mortgage which it replaces.