A400
Ord. No. 62/84
Tacking.
(Cap. 155.) (Cap. 328.)
Conversion of
equitable mortgage.
Inspection of title deeds.
CONVEYANCING AND PROPERTY
(4) Subsection (3) does not affect—
(a) the mortgagee's right to the possession of any documents; or
(b) any rights or obligations, under any guarantee, suretyship or otherwise,
ancillary to the mortgage replaced under that subsection.
(5) Subject to any agreement between the mortgagor and the mortgagee, where the mortgaged land is mortgaged by way of legal charge, the mortgagor may execute a second or subsequent charge against the mortgaged land by a legal charge.
(6) Unless the contrary intention is expressed, the mortgagee under the first mortgage of a legal estate shall be entitled to possession of the deeds of title relating to the mortgaged land.
(7) This section does not affect any mortgage, including a mortgage by sub-demise, effected before the commencement of this section which is not replaced under subsection (3).
(8) This section does not affect any mortgage, charge or lien arising under any Ordinance or by operation of law.
(9) This section does not affect the right or interest of any person arising out of or consequent on the possession by him of any documents relating to a legal estate in land.
45. (1) A mortgagee under prior mortgage may make a further advance or re- advance to rank in the same priority over a subsequent mortgage as the original advance under that prior mortgage-
(a) if the subsequent mortgagee so consents; or
(b) where the further advance or re-advance does not exceed, with any other outstanding advance or re-advance, the specified maximum amount secured under that prior mortgage; or
(c) where that prior mortgage is in favour of a bank (as defined in the Banking Ordinance) or a deposit-taking company (as defined in the Deposit-taking Companies Ordinance) and is expressed to secure all money which may, from time to time, be owing to the prior mortgagee,
and paragraphs (b) and (c) shall have effect whether or not the prior mortgagee had notice of the subsequent mortgage at the time when the further advance or re-advance was made by the prior mortgagee.
(2) The priority to which a prior mortgagee is entitled under subsection (1) shall extend, in addition to the amount secured under the prior mortgage, to interest on that amount and to all costs, charges and expenses secured under the mortgage.
(3) Subject to subsection (1), the right to tack is abrogated:
Provided that nothing in this section shall affect any priority acquired before the commencement of this section.
46. (1) Where an equitable interest becomes a legal estate under section 14, any equitable mortgage by deed over that equitable interest shall become a legal charge over that legal estate in the same terms, subject to this Ordinance, as are contained in that deed.
(2) This section applies to equitable mortgages by deed executed before or after the commencement of this section.
47. (1) A mortgagor and a mortgagee not having possession of the deeds of title relating to the mortgaged land, for so long as they have an interest in that land, shall be entitled at any reasonable times to inspect and make copies of those deeds in the possession of a mortgagee.
(2) This section applies to a mortgage made before or after the commencement of this section and notwithstanding any agreement to the contrary.
CONVEYANCING AND PROPERTY
Ord. No. 62/84
A401
48. Where any mortgage effected after the commencement of this section is Mortgage to 2 or expressed to be made to 2 or more persons jointly, the mortgage money shall (if and more jointly. so far as the contrary intention is not expressed in the mortgage), as between them and the mortgagor, be deemed to be owing to these persons on a joint account and the receipt of the survivors or the last survivor of them or of the successor or personal representative of the last survivor shall be a complete discharge.
1925 c. 20, s. 98(1).
49. (1) A mortgagor under any mortgage (whether effected before or after the Action for commencement of this section) entitled for the time being to the possession or receipt possession of land of the rents or profits of any land in respect of which no notice has been given by the by mortgagor. mortgagee of his intention to take possession or to enter into the receipt of the rents and profits of that land may sue for such possession, or for the recovery of the rents and profits, or to prevent or recover damages in respect of any trespass or other wrong relating to that land, 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.
(2) This section does not affect the power of the mortgagor, apart from this section, in right of the legal estate or otherwise, to take proceedings in his own name.
50. (1) There shall be implied in any legal charge or equitable mortgage by Power to appoint deed, where the mortgage money has become due, a power exercisable in writing by a receiver. the mortgagee and any person entitled to give a receipt for the mortgage money on its repayment to appoint a receiver or receivers of the mortgaged land and the income thereof, to remove any receiver appointed and appoint another in his place.
(2) Any receiver so appointed will be deemed the agent of the mortgagor and the mortgagor will be solely responsible for the receiver's acts and defaults.
(3) Any receiver so appointed may act in his own name or the name of the mortgagor.
(4) Where 2 or more receivers are appointed, the appointment shall be deemed to be a joint and several appointment.
(5) The mortgagee may, from time to time, fix the remuneration of the receiver and the receiver shall be entitled to retain out of any money received by him that re- muneration and all costs, charges and expenses properly incurred by him as a receiver.
(6) Without prejudice to the powers mentioned in the Fourth Schedule, the Fourth Schedule. receiver shall have power to demand and recover all the property of which he is appointed receiver and the income thereof, by action, distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts accordingly for the same.
(7) A person paying money to the receiver shall not be concerned to inquire whether any event has happened to authorize the receiver to act.
(8) The provisions of this section are subject to contrary intention expressed in the mortgage deed and may be varied or extended by the mortgage deed, and, as so varied or extended, shall have effect as if contained in this Ordinance.
(9) This section shall not apply to any mortgage executed before the commence- ment of this section.
receiver.
51. (1) Unless the contrary intention is expressed, there shall be implied in any Powers of legal charge or equitable mortgage by deed, the powers, exercisable by the mortgagee, mortgagee and a receiver (acting personally or through their agents) and any person entitled to give a receipt for the mortgage money on its repayment, mentioned in the Fourth Schedule. Fourth Schedule.
(2) Any power exercisable under a mortgage shall be subject to any prior estates, interests and rights to which the mortgaged land is subject.
(3) No power of sale shall empower a mortgagee or a receiver under an equitable mortgage, by virtue of that mortgage only, to assign the legal estate in the mortgaged land.
(4) The powers implied by subsection (1), and the provisions of the Fourth Schedule relating to the exercise of those powers may be varied or extended by the mort- gage deed and, as so varied or extended, shall have effect as if contained in this Ordinance.
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