Part 2 General rules affecting property
Division 1 Rules of law upon certain points
An estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate.
There shall not, after the commencement of this Act, be held or deemed to be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity, and this provision shall apply to any merger by operation of law only arising before or after the commencement of this Act.
A mortgagor entitled for the time being to the possession of any land as to which no notice of the mortgagee’s intention to take possession, or to enter into the receipt of the rents and profits thereof, has been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in the mortgagor’s own name only, unless the cause of action arises upon a lease or other contract made by the mortgagor jointly with any other person.
12 Assignments of debts and choses in action
Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees.
13 Stipulations not of the essence of contracts
Stipulations in contracts, as to time or otherwise, which would not before the commencement of this Act have been deemed to be or to have become of the essence of such contracts in a court of equity, shall receive in all courts the same construction and effect as they would have heretofore received in such court.
14 The immediate freehold of land to lie in grant as well as in livery
All land shall as regards the assurance of the immediate freehold thereof be deemed to lie in grant as well as in livery.
15 Creation of certain estate in chattels real
Any estate or interest that can be created by will in any chattel real may also be created by deed.
16 When contingent remainders capable of taking effect
(1) A contingent remainder existing at any time after the commencement of this Act shall be capable of taking effect notwithstanding the want of a particular estate of freehold to support it in the same manner as it would take effect if it were a contingent remainder of an equitable estate supported by an outstanding legal estate in fee simple.(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.
17 Rule in Shelley’s case excluded in certain cases
Where in an instrument coming into operation after the commencement of this Act a remainder is limited mediately or immediately to the heirs or heirs of the body of a person to whom an estate for any life in the same premises is expressly given, the estate of such person shall be confined to an estate for the life mentioned with a remainder to the person’s heirs or heirs of the person’s body as purchasers.
18 Release of part of land from rent charge not to extinguish whole charge
The release from a rent charge of part of the land charged therewith shall not extinguish the whole rent charge, but shall operate only to bar the right to recover any part of the rent charge out of the land released without prejudice nevertheless to the rights of all persons interested in the land remaining unreleased and not concurring in or confirming the release.
19 Limitations of estates tail to pass the fee simple
(1) In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not passed, would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable as the case may be) in such land in favour of such person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail.(2)(a) Where at the commencement of this Act any person is entitled to an estate tail (legal or equitable) and whether in possession, reversion, or remainder, in any land, such person, save as is hereinafter mentioned, shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in such land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail.(b) Where any such person is an infant and such land for any estate or interest would pass to any other person in the event of the death of the infant under the age of twenty-one years and without issue, then in such case the infant shall be deemed to take an estate in fee simple with an executory limitation over of such estate or interest on the happening of such event in favour of such other person.(c) This subsection does not apply in respect of a person under mental disability.(d) In this subsection the expression estate tail includes that estate in fee into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise 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 issue extinct.(3) This section applies to land under the provisions of the Real Property Act 1900, and the Registrar-General is hereby authorised on application in the form approved under that Act to make all such recordings in the Register kept under that Act as may be necessary to give effect thereto.
19A Estates tail—further provisions
(1) Where at or after the first day of January one thousand nine hundred and seventy-one any person is entitled, or would, but for section 19, be entitled, to an estate tail (legal or equitable) and whether in possession, reversion, or remainder, in any land, such person shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in such land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail and to the exclusion of all estates or interests in reversion on any such estate tail.(2) In this section the expression estate tail includes that estate in fee into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise 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 issue extinct.(3) This section applies to land under the provisions of the Real Property Act 1900, and the Registrar-General is hereby authorised on application in the form approved under that Act to make all such recordings in the Register kept under that Act as may be necessary to give effect thereto.
No widow shall become entitled, nor on or after the fifteenth day of December, one thousand eight hundred and ninety (being the day of the passing of the Probate Act of 1890), shall any widow be deemed to have become entitled to dower out of any land or out of any estate or interest in the same.
22 No assurance to have tortious operation
No assurance of any land hereafter made shall be deemed to have a tortious operation.
23 Dealings with land of undischarged bankrupt
(1) All transactions by a bankrupt with any bona fide purchaser in respect of any land acquired by the bankrupt after a sequestration order has been made, and whether with or without notice of the bankruptcy, shall, if completed before any intervention by the official assignee of the estate of the bankrupt, be valid against the official assignee, and any estate or interest in such land which by virtue of the Bankruptcy Act 1898, or any Act relating to insolvency, is vested in the official assignee, shall determine and pass in such manner and to such extent as may be required for giving effect to any such transaction.(2) This section shall apply to transactions with respect to land completed before the commencement of this Act in any case where there has not been any intervention by the official assignee before that date.(2A)(a) After the expiration, whether before or after the commencement of the Conveyancing (Amendment) Act 1930, of twenty years after:(i) the date of the sequestration of the estate of a bankrupt under any Act relating to bankruptcy, or(ii) the execution of an assignment for the benefit of the creditors of the assignor,no action, suit, or other proceeding instituted by the official assignee or the trustee of the assignment for the recovery of land which by any such Act or by the assignment was vested in the official assignee or the trustee of the assignment shall succeed against a purchaser from the bankrupt or assignor, or under a sale in execution, or against a successor in title of such purchaser.(b) This subsection shall not apply where the official assignee or trustee of the assignment was in actual possession of the land at the time of the purchase.(c) This subsection shall not apply where the land is under the provisions of the Real Property Act 1900.(3) The registration by the official assignee in the General Register of Deeds of a claim in the prescribed form, or in the case of lands under the provisions of the Real Property Act 1900 the lodging of a caveat under that Act, shall be deemed to be a sufficient intervention.(4) An order affecting the title to any land (not being land under the provisions of the Real Property Act 1900) made under the Bankruptcy Act 1898, is void as against a person who, after the commencement of the Conveyancing (Amendment) Act 1972 and without notice of the order, purchases land from a person whose title to the land is affected by the order, unless the order is registered in the General Register of Deeds.
23A Abolition of the double possibility rule
(1) The rule of law prohibiting the limitation after a life interest to an unborn person of an interest in land to the unborn child or other issue of an unborn person is hereby abolished, but without prejudice to any other rule relating to perpetuities.(2) This section only applies to limitations or trusts created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930.
23B Assurances of land to be by deed
(1) No assurance of land shall be valid to pass an interest at law unless made by deed.(2) This section does not apply to:(a) an acknowledgment under section 83 of the Probate and Administration Act 1898,(b) a disclaimer made in accordance with any law relating to bankruptcy in force before or after the commencement of the Conveyancing (Amendment) Act 1972, or not required to be evidenced in writing,(c) a surrender by operation of law, and a surrender which may, by law, be effected without writing,(d) a lease or tenancy or other assurance not required by law to be made in writing,(e) a vesting order,(f) any other assurance taking effect under any Act or Commonwealth Act.(3) This section does not apply to land under the provisions of the Real Property Act 1900.
23C Instruments required to be in writing
(1) Subject to the provisions of this Act with respect to the creation of interests in land by parol:(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.
23D Creation of interests in land by parol
(1) All interests in land created by parol and not put in writing and signed by the person so creating the same, or by the person’s agent thereunto lawfully authorised in writing, shall have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only.(2) Nothing in this section or in sections 23B or 23C shall affect the creation by parol of a lease at the best rent which can reasonably be obtained without taking a fine taking effect in possession for a term not exceeding three years, with or without a right for the lessee to extend the term at the best rent which can reasonably be obtained without taking a fine for any period which with the term would not exceed three years.
23E Savings in regard to secs 23B, 23C, 23D
Nothing in section 23B, 23C, or 23D shall:(a) invalidate any disposition by will, or(b) affect any interest validly created before the commencement of the Conveyancing (Amendment) Act 1930, or(c) affect the right to acquire an interest in land by virtue of taking possession, or(d) affect the operation of the law relating to part performance.
Division 3A Transactions with respect to existing lots
23F Certain transactions to refer to lots shown on current plan
(1) This section applies to the following transactions:(a) the conveyance or transfer of part of an existing lot,(b) the lease of part of an existing lot,(c) the mortgage of part of an existing lot,(d) the partition of an existing lot.(2) The Registrar-General may refuse to register a transaction to which this section applies unless:(a) the land to which the transaction relates is shown on a current plan, and(b) the boundaries of each part into which the land is divided as a result of the transaction follow the boundaries of an existing lot.(3) This section does not apply to an agreement with respect to land the subject of:(a) a proposed plan of subdivision, a proposed plan of consolidation or a proposed plan of identification within the meaning of section 195, or(b) a proposed strata plan, proposed strata plan of consolidation or proposed strata plan of subdivision within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986,but the agreement is taken to be conditional on the registration of the proposed plan.
Section 23F does not apply to the following transactions:(a) a transaction that relates to the whole of the land comprised in a folio of the Register kept under the Real Property Act 1900,(b) an application by the Crown to bring Crown land under the provisions of the Real Property Act 1900,(b1) a transaction, initiated by the Crown, that redefines a boundary of Crown land that was brought under the provisions of the Real Property Act 1900 on the application of the Registrar-General under section 13D of that Act,(c) a transaction that relates to the whole of the residue of land comprised in a folio of the Register kept under the Real Property Act 1900, where part only of the land is shown in a current plan,(d) a transaction that comprises:(i) the lease of part of an existing lot for a period that, including the period of any option to renew, does not exceed 5 years, or(ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created,(e) a transaction that comprises:(i) the lease of the whole or any part of a building, or(ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created,(f) a transaction that relates to an existing lot that is owned by 2 or more persons in severalty, where:(i) one of the owners disposes of his or her part of the lot to another owner, or(ii) all of the owners of the lot dispose of the lot to some other person,(g) a transaction that relates to part of an existing lot, where:(i) that part (and no other part of the lot) is held by a person in his or her capacity as a trustee, administrator or executor of, or as a beneficiary of the estate of, an owner referred to in paragraph (f), and(ii) the transaction relates to the whole of that part,(h) a transaction that relates to part of an existing lot, where:(i) the transaction is necessary to give effect to an order, direction or judgment of a court of competent jurisdiction, and(ii) the person by whom the transaction is given effect to does not have power to give effect to such a transaction with respect to any other part of the lot,(i) a transaction that relates to part of an existing lot, where:(i) the transaction gives effect to a sale of land under a writ of execution, under Division 5 of Part 2 of Chapter 17 of the Local Government Act 1993, under the NSW Trustee and Guardian Act 2009 or under any power conferred by a Commonwealth Act, and(ii) the person giving effect to the transaction does not have power to give effect to such a transaction with respect to any other part of the lot,(j) a transaction that relates to part of an existing lot (not being land under the provisions of the Real Property Act 1900), where:(i) a person in adverse possession of that part disposes of that part to some other person, and(ii) the firstmentioned person does not have power to dispose of any other part of the existing lot,(k) a transaction that relates to part of an existing lot, where the transaction conveys or transfers land to an Aboriginal Land Council in accordance with the requirements of the Aboriginal Land Rights Act 1983, the Native Title (New South Wales) Act 1994 or any other Act or law,(l) a transaction that relates to the whole of the residue of an existing lot, where part of the lot:(i) has been the subject of a transaction referred to in paragraph (h), (i), (j) or (k), or(ii) has been acquired, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or(iii) has been dedicated as a public road,(m) a transaction that comprises:(i) the lease or licence of part of an existing lot under an ARTC arrangement under Part 8A of the Transport Administration Act 1988, or(ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created,(n) a transaction that comprises:(i) the granting of a special purpose lease within the meaning of Division 3A of Part 4 of the Crown Lands Act 1989 or Part 9E of the Western Lands Act 1901, or(ii) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created.
Division 3B Subdivisions to allow leases for caravan parks or mobile home estate purposes
In this Division, plan of subdivision for lease purposes means a plan of subdivision (within the meaning of section 195) of land within a caravan park or a manufactured home estate (within the meaning of the Local Government Act 1993) that is marked, in accordance with the regulations, so as to indicate that development consent to the subdivision has been granted under the Environmental Planning and Assessment Act 1979 subject to the condition that the subdivision is a subdivision for lease purposes.
(1) The Registrar-General may refuse to register a transaction with respect to a lot in a plan of subdivision for lease purposes unless it comprises:(a) the lease of the whole of the lot for a period that, including the period of any option to renew, does not exceed 20 years, or(b) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created.(2) This section does not apply to an agreement with respect to land the subject of a proposed plan of subdivision for lease purposes, but the agreement is taken to be conditional on the registration of the proposed plan.
Division 3C Subdivisions to allow leases for forestry purposes
In this Division, plan of subdivision for lease purposes means a plan of subdivision (within the meaning of section 195) that is marked, in accordance with the regulations, to indicate that development consent to the subdivision has been granted under the Environmental Planning and Assessment Act 1979 subject to the condition that the subdivision is a subdivision for forestry lease purposes.
(1) The Registrar-General may refuse to register a transaction with respect to a lot in a plan of subdivision for lease purposes unless it comprises:(a) the lease of the whole of the lot for a period that, including the period of any option to renew, does not exceed 40 years, or(b) the transfer, conveyance, sublease, variation or mortgage of a leasehold interest so created.(2) This section does not apply to an agreement with respect to land the subject of a proposed plan of subdivision for lease purposes, but the agreement is taken to be conditional on the registration of the proposed plan.
24 Person may assure property to himself or herself, or to himself or herself and others
A person may assure property to himself or herself, or to himself or herself and others.
25 Power for corporations to hold property as joint tenants
(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.
26 Construction of conveyance etc of any property beneficially to two or more persons together
(1) In the construction of any instrument coming into operation after the commencement of this Act a disposition of the beneficial interest in any property whether with or without the legal estate to or for two or more persons together beneficially shall be deemed to be made to or for them as tenants in common, and not as joint tenants.(2) This section does not apply to persons who by the terms or by the tenor of the instrument are executors, administrators, trustees, or mortgagees, nor in any case where the instrument expressly provides that persons are to take as joint tenants or tenant by entireties.
27 Tenants in common of equitable estate acquiring the legal estate
Where two or more persons entitled beneficially as tenants in common to an equitable estate in any property are or become entitled in their own right whether as joint tenants or tenants in common to the legal estate in such property equal to and co-extensive with such equitable estate both the legal and equitable estates shall be held by them as tenants in common unless such persons otherwise agree.
28 Release and disclaimer of powers
(1) A person to whom is given any power (other than a power coupled with a duty), whether coupled with an interest or not, may by deed release or contract not to exercise the power.(2) Any such person as aforesaid may by deed disclaim any such power, and after such disclaimer shall not be capable of exercising or joining in the exercise of the power.(3) On such disclaimer the power may be exercised by the other or others, or the survivors or survivor of the others, of the persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.(4) This section applies to powers created by instruments coming into operation either before or after the commencement of this Act.(5) Where any such power is exercisable by a dealing to be registered under the Real Property Act 1900, the power may be released or disclaimed by a dealing in the form approved under that Act and such a dealing may be registered under that Act.
29 Appointments to be valid notwithstanding one or more objects excluded
(1) No appointment in exercise of any power to appoint any property amongst several objects shall be invalid on the ground that any object of the power has been altogether excluded, but every such appointment shall be valid and effectual notwithstanding that any one or more of the objects do not by such appointment or in default of appointment take a share or shares of the property.(2) Nothing in this section shall prejudice or affect any provision in any instrument creating any power which declares the amount of the share or shares from which no object of the power shall be excluded, or some one or more object or objects shall not be excluded.(3) This section applies to appointments made after the commencement of this Act in exercise of powers created before or after the commencement of this Act.
29A Protection of purchasers claiming under certain void appointments
(1) An instrument purporting to exercise a legal or equitable power of appointment over property, which, in default of and subject to any appointment, is limited to or held in trust for a class or number of persons including the appointee, shall not be void on the ground of fraud on the power as against a purchaser in good faith:Provided that, if the interest appointed exceeds in amount or value the interest in such property to which immediately before the execution of the instrument the appointee was presumptively entitled under the trust in default of appointment, having regard to any advances made in the appointee’s favour and to any hotchpot provision, the protection afforded by this section to a purchaser shall not extend to such excess.
(2) In this section a purchaser in good faith means a person dealing with an appointee for valuable consideration and without notice of the fraud, or of any circumstances from which, if reasonable inquiries had been made, the fraud might have been discovered.(3) A successor in title to a purchaser entitled to the benefit of this section shall be entitled to the like benefit.(4) This section applies only to dealings effected after the commencement of the Conveyancing (Amendment) Act 1930, but applies to powers created or arising either before or after such commencement.(5) This section as amended by the Minors (Property and Contracts) Act 1970 applies only to dealings effected after the commencement of that Act, but applies to powers created or arising either before or after such commencement.
29B Restrictions on executory limitations
(1) Where there is a person entitled to:(a) land for an estate in fee simple or for any less estate or interest, or(b) any other property,with an executory limitation over on default or failure of all or any of the person’s issue, whether within or at any specified period of time or not, that executory limitation shall be or become void and incapable of taking effect, if and as soon as there is living any issue who has attained the age of eighteen years of the class on default or failure whereof the limitation over was to take effect.(2) This section applies where the executory limitation is contained in an instrument coming into operation after the first day of July one thousand nine hundred and twenty save that, as regards instruments coming into operation before the commencement of the Conveyancing (Amendment) Act 1930 it only applies to limitations of land for an estate in fee, or for a term of years absolute or determinable on life, or for a term of life.(3) This section as amended by the Minors (Property and Contracts) Act 1970 applies where the executory limitation is contained in an instrument coming into operation after the commencement of that Act.
29C Restrictions on operation of conditions of forfeiture
(1) Where there is a person entitled to income (including an annuity or other periodical income) or any other property, subject to a condition of forfeiture on alienation, whether voluntary or involuntary, and whether with or without words of futurity, then:(a) unless the instrument containing the condition expressly provides to the contrary, no alienation, whether by way of charge or otherwise, of the income or other property, made or occurring before the person becomes entitled to receive payment of the income, or to call for a conveyance or delivery of the other property, shall operate to create forfeiture under the condition unless the alienation is in operation at the time the person becomes so entitled,(b) notwithstanding any stipulation to the contrary in the instrument containing the condition no voluntary alienation made by the person, with the sanction of the court, shall operate to create forfeiture under the condition.(2) This section applies where the condition of forfeiture is contained in an instrument executed, made, or coming into operation before or after the commencement of the Conveyancing (Amendment) Act 1930, but only in cases where such person becomes entitled to receive payment of the income, or to call for an assurance or delivery of the other property, or, where the alienation with the sanction of the court is made after such commencement.
30 Notice of severance of joint tenancy
(1) A person who unilaterally severs, or causes the severance of, a joint tenancy in land to which the Real Property Act 1900 does not apply must give notice of the severance to all joint tenants in the joint tenancy as soon as practicable after the joint tenancy has been severed.(2) The notice is to be given in a form approved by the Registrar-General.(3) Failure to give notice as required by and in accordance with this section does not invalidate or otherwise affect the severance of the joint tenancy.
32 Vesting in executor or administrator de bonis non
(1) Where, upon the death of an executor or administrator, administration of the estate remaining unadministered is granted, such estate shall, upon the grant, vest as from the death of such executor or administrator, in the person to whom the grant is made.(2) Where in the case of a person dying on or after the fifteenth day of December, one thousand eight hundred and ninety (being the day of the passing of the Probate Act of 1890), administration of the estate remaining unadministered has been granted prior to the commencement of this Act, a conveyance by the person to whom the grant was made shall be deemed to be and to have been effectual to pass any legal estate in the property conveyed which was vested in the deceased executor or administrator at the time of his or her death.
33 Meaning of heir, next of kin, or statutory next of kin of any person
(1) Where, under the terms of any will coming into operation, or of any instrument (other than a will) made, after the commencement of section 3 of the Conveyancing (Amendment) Act 1977, any property would, but for this section, vest in:(a) the heirs of a person,(b) the next of kin of a person, or(c) the next of kin of a person to be determined in accordance with the Probate and Administration Act 1898,the provisions of the applicable intestacy rules shall, subject to subsection (2), apply in respect of that property in the same way as those provisions would apply if that person had died intestate as to that property.(2) Subsection (1) applies only if and so far as a contrary or another intention is not expressed in the will or other instrument and shall have effect subject to the provisions of the will or other instrument.(3) Where, under the terms of any will coming into operation, or of any instrument (other than a will) made, before the commencement of section 3 of the Conveyancing (Amendment) Act 1977, any property would, but for this subsection, vest in:(a) the heirs of a person,(b) the next of kin of a person, or(c) the next of kin of a person to be determined in accordance with the Probate and Administration Act 1898,that property shall vest in the persons in whom it would have vested if that section had not commenced.(4) In subsection (1):applicable intestacy rules means:
(a) for a will coming into operation, or an instrument made, before the repeal of Division 2A of Part 2 of the Probate and Administration Act 1898—that Division as in force immediately before its repeal, and(b) for a will coming into operation, or an instrument made, after the repeal of that Division—Chapter 4 (Intestacy) of the Succession Act 2006.
34 Meaning of heir (male or female) or heirs (male or female) of the body of any person
(1) Where under the terms of any instrument coming into operation after the commencement of this Act any property vests in:(a) the heir or heirs of the body of any person, or(b) the heir or heirs male, or the heir or heirs male of the body of any person, or(c) the heir or heirs female, 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 such person as tenants in common per stirpes,
in case (b) in the sons and issue of sons of such person as tenants in common per stirpes, and
in case (c) in the daughters and the issue of daughters of such person as tenants in common per stirpes.
(2) This section applies only if and as 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.
35 Presumption of survivorship
In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder.
36A Power to direct division of chattels
Where any chattels belong to persons jointly or in undivided shares, the persons interested to the extent of a moiety or upwards may apply to the court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the court may make such order and give any consequential directions as it thinks fit.
36B Contingent and future interests to carry the intermediate income
Where under an instrument other than a will coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 property stands limited to a person for a contingent or future interest, or stands limited to trustees upon trust for a person whose interest is contingent or executory, such interest shall, subject to the statutory provisions relating to accumulations, carry the intermediate income of that property from the time when the instrument comes into operation, except so far as such income or any part thereof may be otherwise expressly disposed of.
36C Persons taking who are not parties
(1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant, or agreement over or respecting land or other property, although the person may not be named as a party to the assurance or other instrument.(2) Such person may sue, and shall be entitled to all rights and remedies in respect thereof as if he or she had been named as a party to the assurance or other instrument.
36D Provisions as to supplemental instruments
Any instrument (whether executed before or after the commencement of the Conveyancing (Amendment) Act 1930) expressed to be supplemental to a previous instrument, shall, as far as may be, be read and have effect as if the supplemental instrument contained a full recital of the previous instrument, but this section shall not operate to give any right to an abstract or production of any such previous instrument, and a purchaser may accept the same evidence that the previous instrument does not affect the title as if it had merely been mentioned in the supplemental instrument.
Division 5 Voidable dispositions
37A Voluntary alienation to defraud creditors voidable
(1) Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced.(2) This section does not affect the law of bankruptcy for the time being in force.(3) This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having, at the time of the alienation, notice of the intent to defraud creditors.
37B Voluntary alienation of land how far voidable as against purchasers
(1) Every instrument (other than a will) which operates, or on registration would operate as a voluntary alienation of land, shall, if made with intent to defraud a subsequent purchaser, be voidable at the instance of a subsequent purchaser.(2) For the purposes of this section no such instrument (whether made before or after the commencement of the Conveyancing (Amendment) Act 1930) shall, if registered before a subsequent purchase, be deemed to have been made with intent to defraud by reason only of that purchase, or that the instrument was not made for valuable consideration.
37C Acquisitions of reversions at an under value
(1) No acquisition made in good faith, without fraud or unfair dealing, of any reversionary interest in real or personal property for money or money’s worth, shall be liable to be opened or set aside merely on the ground of under value.In this subsection reversionary interest includes an expectancy or possibility.
(2) This section does not affect the jurisdiction of the court to set aside or modify unconscionable bargains.
37D (Repealed)