A402
Ord. No. 62/84
Protection of purchaser.
Sale by
mortgagee. 1925. c. 20. s. 89.
Application of
money received.
1925 c. 20, ss. 105
& 107(2).
Mortgagee's receipt.
1925 c. 20, s. 107.
Discharge of
mortgage by
signed receipt.
1925 c. 20, s. 115.
CONVEYANCING AND PROPERTY
(5) This section shall not apply to any mortgage executed before the commence- ment of this section.
52. Where a sale is made under a mortgage, the title of the purchaser shall not be affected by the fact that no case had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised; but any person who suffers loss through an unauthorized, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising the power.
53. (1) A sale of land, under an express or statutory power of sale, by a mortgagee or a receiver shall operate-
(a) to assign to the purchaser the mortgagor's estate in that land, subject to any other mortgage having priority to the mortgage under which the sale is made; and
(b) to discharge that land from the mortgage under which the sale is made and
any subsequent mortgage.
(2) Where a mortgagee obtains an order of foreclosure absolute, that order shall (unless it otherwise provides) operate—
(a) to assign to the mortgagee the mortgagor's estate in the mortgaged land, subject to any other mortgage having priority to the mortgage under which the foreclosure order was obtained; and
(b) to discharge that land from the mortgage under which the foreclosure order
was obtained and any subsequent mortgage.
54. Any money received by a mortgagee or a receiver from the sale or other dealing with the mortgaged land or any security comprised in the mortgage shall be applied according to the following priority--
(a) in discharge of all rent, taxes, rates and other outgoings due and affecting
the mortgaged land;
(b) unless the mortgaged land is sold subject to a prior incumbrance, in
discharge of that prior incumbrance;
(c) in payment of the receiver's lawful remuneration, costs, charges and expenses and all lawful costs and expenses properly incurred in the sale or other dealing;
(d) in payment of mortgage money, interest and costs due under the mortgage, and any residue shall be paid to the person who, immediately before any sale or other dealing, was entitled to the mortgaged land or authorized to give a receipt for the proceeds of the sale of that land.
55. (1) A receipt in writing of a mortgagee or a receiver shall be a sufficient discharge for any money arising under a power of sale or for any money or security comprised in the mortgage or arising under it; and a person paying that money or transferring that security shall not be concerned to inquire whether any money remains due under the mortgage.
(2) A receipt mentioned in subsection (1) need not be under seal.
56. (1) A receipt, written on or annexed to a mortgage deed, for all money secured by that mortgage, which is executed by the mortgagee or the person in whom the mortgage is vested and who is legally entitled to give a receipt for the mortgage money, shall operate, without any surrender or release as a discharge of the mortgaged property from all principal money and interest secured by, and from all claims under, that mortgage, but without prejudice to any term or other interest which is paramont to the estate or interest of the mortgagee or other person in whom the mortgage is vested.
CONVEYANCING AND PROPERTY
Ord. No. 62/84
A403
(2) Upon performance of the terms of a mortgage, a mortgagor shall be entitled, at his cost and charge, to a receipt mentioned in subsection (1).
(3) In a receipt mentioned in subsection (1), there shall be implied, unless the contrary intention is expressed, a covenant by the person who executes the receipt that such person has not executed or done, or knowingly suffered, or been party or privy to, any deed or thing, whereby or by means whereof the mortgaged property or any part thereof is or may be impeached, charged, affected or incumbered in title, estate or otherwise.
(4) Where the mortgage is contained in more than one deed, a receipt may, for the purposes of this section, refer to all those deeds and be written on or annexed to one of those deeds.
(5) A receipt under this section need not be under seal.
(6) This section applies to the discharge of any mortgage by deed, whether that deed was executed before or after the commencement of this section, but only to discharges effected after the commencement of this section.
57. The Land Registration Ordinance is amended by inserting, immediately Amendment of after section 2, the following-
"Floating charge.
2A. (1) A document effecting a charge over all or part of the property which may, from time to time, be owned by the chargor (commonly called "a floating charge"), whether or not it specifically identifies any land charged, is not, for the purposes of section 2, a deed, conveyance or other instrument in writing by which any parcel of ground, tenement or premises in Hong Kong may be affected.
(2) A document effecting a floating charge created before or after 1 November 1984-
(a) becomes a fixed charge on the land intended to be affected:
and
(b) for the purposes of section 2, is a deed, conveyance or other instrument in writing by which any parcel of ground, tenement or premises in Hong Kong may be affected,
upon crystallization of that charge after 1 November 1984 as evid- enced by a certificate signed by or on behalf of the chargee.
(3) For the purposes of section 5, the time of execution of a charge mentioned in subsection (2) is the time of signature of the certificate mentioned in that subsection.".
PART VI
RELIEF AGAINST FORFEITURE
Land Registration Ordinance. (Cap. 128.)
Restrictions on
58. (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, and relief against by action or otherwise, unless and until the lessor serves on the lessee a notice-
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach;
and
(c) specifying the compensation, if any, which the lessor requires in respect of
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 in money, to the satisfac- tion of the lessor, for the breach.
forfeiture of leases and under-leases.
1925 c. 20. s. 146.
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