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Contents (1919 - 6)
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Conveyancing Act 1919 No 6
Current version for 8 January 2019 to date (accessed 18 September 2019 at 23:16)
Part 22
Part 22 Miscellaneous
177   Duty of care in relation to support for land
(1)  For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land.
(2)  Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land).
(3)  For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.
(4)  The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land.
(5)  The duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed.
(6)  Any such agreement:
(a)  has effect in relation to any agent of the person on whom the duty lies, and
(b)  has effect in relation to any successor in title of the supported land if the agreement is embodied in a registered easement for removal of support relating to that land.
(7)  The right to agree to the removal of the support provided by supporting land to supported land is a right of the kind that is capable of being created by an easement.
(8)  Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section.
(9)  Any action in negligence that is commenced after the commencement of this section in relation to the removal of the support provided by supporting land to supported land may be wholly or partly based on something that was done before the commencement of this section. However, this subsection does not operate to extend any period of limitation under the Limitation Act 1969.
(10)  This section extends to land and dealings under the Real Property Act 1900.
(11)  This section does not apply in relation to any proceedings that were commenced before the commencement of this section.
(12)  A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support.
(13)  This section binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
177A   No distress for rent
(1)  Any common law right of a person to levy distress for rent is abolished.
(2)  Nothing in this section affects any other right of a person to whom rent is due to recover the rent from the person liable to pay the rent.
178   No way by user against Crown etc
No dedication or grant of a way shall be presumed or allowed to be asserted or established as against:
(a)  the Crown, or
(b)  persons holding lands in trust for any public purposes,
by reason only of user, and this whether in proceedings instituted by or on behalf of the Crown or not, and whether such user commenced before or after the eighteenth day of October, one thousand eight hundred and sixty-one (being the day of the commencement of the Crown Lands Alienation Act of 1861).
179   Right to light or air not deemed to exist by reason only of enjoyment or presumption of lost grant
From and after the first day of December, one thousand nine hundred and four (being the day of the commencement of the Ancient Lights Declaratory Act 1904), no right to the access or use of light or air to or for any building shall be deemed to exist, or to be capable of coming into existence by reason only of the enjoyment of such access, or use, for any period, or of any presumption of a lost grant based upon such enjoyment.
180   Sale under power not to be avoided by reason of mistaken payment to tenant for life
(1)  Where, under a power of sale, a bona fide sale is made of an estate with the timber thereon, or any other articles attached thereto, and the tenant for life, or any other party to the transaction, is by mistake allowed to receive for his or her own benefit a portion of the purchase money as the value of the timber or other articles, the Court, upon any claim or application as the case may require or permit, may declare that upon payment by the purchaser or the claimant under that purchaser of the full value of the timber and articles at the time of sale, with such interest thereon as the Court directs, and the settlement of the said principal moneys and interest under the direction of the Court upon such parties as in the opinion of the Court are entitled thereto, the sale ought to be established.
(2)  Upon such payment and settlement being made accordingly the Court may declare that the sale is valid, and thereupon the legal estate shall vest and go in like manner as if the power had been duly executed.
(3)  The costs of the application as between solicitor and client shall, unless the Court otherwise orders, be paid by the purchaser or the claimant under that purchaser.
181   Construction of expressions used in deeds and other instruments
(1)  In all deeds, contracts, wills, orders, and other instruments (whether relating to property or not), and in any rules or regulations under this Act executed or made after the commencement of the Conveyancing (Amendment) Act 1930, unless the contrary intention appears:
(a)  The masculine includes the feminine and vice versa.
(b)  The singular includes the plural and vice versa.
(c)  Person includes a corporation.
(d)  Month means calendar month.
(1A)  For the purposes of any deed, contract, will, order or other instrument (whether relating to property or not and whether made before or after the commencement of the Minors (Property and Contracts) Act 1970) a person attains an age in years at the beginning of the person’s birthday for that age, unless the contrary intention appears.
(2)  This section extends to dealings under the Real Property Act 1900.
181A   Construction of expressions used to create easements
(1)  In an instrument executed or made after 1 January 1931 (the commencement of the Conveyancing (Amendment) Act 1930) and purporting to create a right-of-way the expressions right of carriage way and right of footway have the same effect as if there had been inserted in lieu thereof respectively the words contained in Part 1 or Part 2 of Schedule 8.
(1A)  In an instrument executed or made after 15 June 1964 (the commencement of the Local Government and Conveyancing (Amendment) Act 1964) and purporting to create a drainage easement the expressions easement to drain water and easement to drain sewage have the same effect as if there had been inserted in lieu thereof respectively the words contained in Part 3 or Part 4 of Schedule 8.
(2)  In an instrument which takes effect after the commencement of Schedule 1 [16] to the Property Legislation Amendment (Easements) Act 1995 and purports to create an easement of the following kind, the following expressions have effect as if the words attributed in Schedule 8 to those expressions were inserted instead:
easement for repairs
easement for batter
easement for drainage of sewage
easement for drainage of water
easement for electricity purposes
easement for overhang
easement for services
easement for water supply
easement to permit encroaching structure to remain
right of access
(2A)  In an instrument that takes effect after the commencement of section 177 (as inserted by Schedule 1 [1] to the Conveyancing Amendment (Law of Support) Act 2000) and purporting to create an easement for removal of support, the expression easement for removal of support has effect as if the words attributed in Part 15 of Schedule 8 to that expression were inserted instead.
(3)  The meaning given to an expression by this section and Schedule 8 may be varied (whether by way of addition, exception, qualification or omission), and is taken to have always been capable of being varied, by the instrument in which the expression is used.
(3A)  In Schedule 8:
(a)  a lot includes any other distinct piece or parcel of land (such as an island, a portion of a Parish or a Section), and
(b)  an owner of a lot benefited includes:
•  any person entitled to possession of the whole of the lot benefited or any person authorised by such a person, and
•  any person entitled to possession of any part of that lot which is capable of benefiting from the easement or any person authorised by such a person.
(4)  This section extends to dealings under the Real Property Act 1900.
181B   Construction of expression “party wall” in assurances of land
(1)  Where in an assurance of land made by a person entitled to assure or create easements in respect of a wall built or to be built on the common boundary of that land and adjoining land so that the boundary passes longitudinally through the wall, the wall is described as a party wall, that expression means (unless a contrary intention appears) a wall severed vertically and longitudinally with separate ownership of the severed portions, and with cross-easements entitling each of the persons entitled to a portion to have the whole wall continued in such manner that each building supported thereby shall have the support of the whole wall, and the assurance shall operate to create such easements accordingly.
(2)  This section applies only to:
(a)  assurances executed or made after the commencement of the Conveyancing (Amendment) Act 1930 and before the commencement of section 88BB, and
(b)  assurances executed or made after the commencement of section 88BB but that assure land in a deposited plan that:
(i)  shows a boundary of that land and other land in the plan as a party wall, and
(ii)  was registered or recorded under Division 3 of Part 23 before the commencement of section 88BB.
(3)  This section extends to dealings under the Real Property Act 1900.
182   Saving clause as to acknowledgments endorsed on mortgages previously to 1893
In the case of an acknowledgment to the effect that a mortgage has been satisfied which was endorsed on such mortgage and signed previously to the thirteenth day of December, one thousand eight hundred and ninety-three, nothing contained in this Act, or in any Act hereby repealed, shall invalidate or affect any estate, right, or interest which has been acquired subsequent to such signing, or any other act or thing that would have been valid if this Act had not been passed.
183   Punishing of vendor for fraudulent concealment of deeds or falsifying pedigree
(1)  Any seller or mortgagor of any property conveyed or assigned to a purchaser or mortgagee, or the solicitor or agent of any such seller or mortgagor, who, after the commencement of this Act, conceals any settlement, deed, will, or other instrument material to the title, or any incumbrance from the purchaser or mortgagee, or falsifies any pedigree upon which the title does or may depend, in order to induce the purchaser or mortgagee to accept the title offered or produced to the purchaser or mortgagee, with intent in any of such cases to defraud, shall be guilty of an indictable offence, and, being found guilty, shall be liable, at the discretion of the Supreme Court, to suffer such punishment by fine or imprisonment for any time not exceeding two years or by both, as the Court awards, and shall also be liable to proceedings for damages at the suit of the purchaser or mortgagee, or those claiming under the purchaser, or mortgagee, for any loss sustained by them, or either or any of them, in consequence of the settlement, deed, will, or other instrument or incumbrance so concealed, or of any claim made by any person under such pedigree, but whose right was concealed by the falsification of such pedigree.
(2)  In estimating such damages where the estate is recovered from such purchaser or mortgagee, or from those claiming under the purchaser or mortgagee, regard shall be had to any expenditure by them, or either or any of them, in improvements on the land.
(3)  No prosecution for any offence included in this section against any seller or mortgagor, or any solicitor or agent, shall be commenced without the sanction of His Majesty’s Attorney-General or Solicitor-General.
(4)  No such sanction shall be given without previous notice of the application for leave to prosecute to the person intended to be prosecuted in such form as the Attorney-General or the Solicitor-General directs.
184   Abolition of Rule in Pigot’s Case
(1)  The rule of law known as the Rule in Pigot’s Case is abolished.
(2)  Accordingly, a material alteration to a deed does not, by itself, invalidate the deed or render it voidable, or otherwise affect any obligation under the deed.
(3)  This section applies to and in respect of alterations made before or after the commencement of this section, but does not apply in relation to proceedings instituted before the commencement of this section.
(4)  This section extends to dealings under the Real Property Act 1900.
(5)  In this section, deed includes a written contract or any document evidencing a contractual intention.