33.— In this Chapter, unless the context otherwise requires—

“dominant land” means land benefited by an easement or profit à prendre to which other land is subject, or in respect of which a relevant user period has commenced; and “dominant owner” shall be read accordingly and includes that owner’s predecessors and successors in title;

“foreshore” has the meaning given to it by section 2(1) of the Act of 1957;

“interruption” means interference with, or cessation of, the use or enjoyment of an easement or profit à prendre for a continuous period of at least one year, but does not include an interruption under section 37 (1);

“period of non-user” means a period during which the dominant owner ceases to use or enjoy the easement or profit à prendre;

“relevant user period” means a period of user as of right without interruption by the person claiming to be the dominant owner or owner of profit à prendre in gross—

(a) where the servient owner is not a State authority, for a minimum period of 12 years, or

(b) where the servient owner is a State authority, for—

(i) a minimum period of 30 years, or

(ii) where the servient land is foreshore, a minimum period of 60 years;

“servient land” means land subject to an easement or profit à prendre, or in respect of which a relevant user period has commenced; and “servient owner” shall be read accordingly and includes that owner’s predecessors and successors in title;

“State authority” means a Minister of the Government or the Commissioners of Public Works in Ireland;

“user as of right” means use or enjoyment without force, without secrecy and without the oral or written consent of the servient owner.

34.— Subject to section 38, acquisition of an easement or profit à prendre by prescription at common law and under the doctrine of lost modern grant is abolished and after the commencement of this Chapter acquisition by prescription shall be in accordance with section 35.

35.—F2[(1) An easement or profit à prendre may be acquired at law by prescription—

(a) on registration of a court order under this section, or

(b) in accordance with section 49A of the Act of 1964. ]

[PA 1832]

[PA 1858]

(2) Subject to subsection (3), in an action to establish or dispute the acquisition by prescription of an easement or profit à prendre, the court shall make an order declaring the existence of the easement or profit à prendre if it is satisfied that there was a relevant user period immediately before the commencement of the action.

(3) The court may make an order under subsection (2) where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all the circumstances of the case.

(4) An order under subsection (2) shall be registered in the Registry of Deeds or Land Registry, as appropriate.

36.— (1) Where the dominant owner acquiring an easement or profit à prendre under section 35 owns a tenancy only in the dominant land, the easement or profit à prendre attaches to that land and when the tenancy ends, passes to the landlord.

[PA 1832, s. 8]

(2) Where an easement or profit à prendre is acquired under section 35against a servient owner who owns a tenancy only in the servient land, it ends when that tenancy ends, but if the servient owner—

(a) acquires a superior interest in the land, the easement or profit à prendre attaches to the superior interest,

(b) obtains an extension or renewal of the tenancy, the easement or profit à prendre continues to attach to the land for the period of that extension or renewal.

(3) Nothing in subsection (2) prevents the subsequent acquisition of an easement or profit à prendre under section 35 on the basis of a new relevant user period against a landlord who takes possession of the servient land after the tenancy ends.

37.— (1) Subject to subsection (2), where the servient owner is incapable, whether at the commencement of or during the relevant user period, of managing his or her affairs because of a mental incapacity, the running of that period is suspended until the incapacity ceases.

[PA 1832, s. 7]

(2) Subsection (1) does not apply where—

(a) the court considers that it is reasonable, in the circumstances of the case, to have expected some other person, whether as trustee, committee of a ward of court, an attorney under an enduring power of attorney or otherwise, to have acted on behalf of the servient owner during the relevant user period, or

(b) at least 30 years have elapsed since the commencement of the relevant user period.

38.— In relation to any claim to an easement or profit à prendre made after the commencement of this Chapter, sections 34 to 37—

(a) apply to any claim based on a relevant user period notwithstanding that it is alleged that an additional user period occurred before that commencement,

(b) do not apply to any claim based on a user period under the law applicable prior to the commencement of this Chapter and alleged to have commenced prior to such commencement where the action in which the claim is made is brought F3[within 12 years] of such commencement.

39.— (1) On the expiry of a 12 year continuous period of non-user of an easement or profit à prendre acquired by—

(a) prescription, or

(b) implied grant or reservation,

the easement or profit à prendre is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry, as appropriate.

F4[(1A) Subsection (1) does not affect the exercise by the Property Registration Authority of the power to modify or cancel any entry in accordance with section 69(4) of the Act of 1964. ]

(2) This section applies to extinguishment of an easement or profit à prendre notwithstanding that it was acquired before the commencement of this Chapter, provided at least 3 years of the period of non-user occur after such commencement.

(3) Nothing in this section affects the jurisdiction of the court to declare that an easement or profit à prendre, however acquired, has been abandoned or extinguished.

40.— (1) The rule known as the Rule in Wheeldon v. Burrows is abolished and replaced by subsection (2).

(2) Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which—

(a) is necessary to the reasonable enjoyment of the part disposed of, and

(b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it.

(3) This section does not otherwise affect—

(a) easements arising by implication as easements of necessity or in order to give effect to the common intention of the parties to the disposition,

(b) the operation of the doctrine of non-derogation from grant.

41.— (1) Subject to subsection (2), the creation of a rentcharge at law or in equity is prohibited.

(2) Subsection (1) does not apply to the creation of a rentcharge under—

(a) a contract entered into before the commencement of this Chapter,

(b) an order of the court, or

(c) any statutory provision.

42.— Subject to any other statutory provision, from the commencement of this Chapter, a rentcharge is enforceable as a simple contract debt only.

[CA 1881, s. 44]

43.— In this Chapter, unless the context otherwise requires—

“adjoining” includes adjacent;

“adjoining owner” means the owner of any estate or interest in a building or unbuilt-on land adjoining that of the building owner;

“building” includes part of a building;

“building owner” means the owner for the time being of any estate or interest in a building or unbuilt-on land who wishes to carry out works to a party structure;

“the court” means the District Court;

“party structure” means any arch, ceiling, ditch, fence, floor, hedge, partition, shrub, tree, wall or other structure which horizontally, vertically or in any other way—

(a) divides adjoining and separately owned buildings, or

(b) is situated at or on or so close to the boundary line between adjoining and separately owned buildings or between such buildings and unbuilt-on lands that it is impossible or not reasonably practical to carry out works to the structure without access to the adjoining building or unbuilt-on land,

and includes any such structure which is—

(i) situated entirely in or on one of the adjoining buildings or unbuilt-on lands, or

(ii) straddles the boundary line between adjoining buildings or between such buildings and unbuilt-on lands and is either co-owned by their respective owners or subject to some division of ownership between them;

“works” include—

(a) carrying out works of adjustment, alteration, cutting into or away, decoration, demolition, improvement, lowering, maintenance, raising, renewal, repair, replacement, strengthening or taking down,

(b) cutting, treating or replacing any hedge, tree or shrub,

(c) clearing or filling in ditches,

(d) ascertaining the course of cables, drains, pipes, sewers, wires or other conduits and clearing, renewing, repairing or replacing them,

(e) carrying out inspections, drawing up plans and performing other tasks requisite for, incidental to or consequential on any works falling within paragraphs (a) to (d);

“works order” means an order under section 45 (1).

44.— (1) Subject to subsection (2), a building owner may carry out works to a party structure for the purpose of—

(a) compliance with any statutory provision or any notice or order under such a provision, or

(b) carrying out development which is exempted development or development for which planning permission has been obtained or compliance with any condition attached to such permission, or

(c) preservation of the party structure or of any building or unbuilt-on land of which it forms a part, or

(d) carrying out any other works which—

(i) will not cause substantial damage or inconvenience to the adjoining owner, or

(ii) if they may or will cause such damage or inconvenience, it is nevertheless reasonable to carry them out.

(2) Subject to subsection (3), in exercising any right under subsection (1) the building owner shall—

(a) make good all damage caused to the adjoining owner as a consequence of the works, or reimburse the adjoining owner the reasonable costs and expenses of such making good, and

(b) pay to the adjoining owner—

(i) the reasonable costs of obtaining professional advice with regard to the likely consequences of the works, and

(ii) reasonable compensation for any inconvenience caused by the works.

(3) The building owner may—

(a) claim from the adjoining owner as a contribution to, or deduct from any reimbursement of, the cost and expenses of making good such damage under subsection (2)(a), or

(b) deduct from compensation under subsection (2)(b)(ii),

such sum as will take into account the proportionate use or enjoyment of the party structure which the adjoining owner makes or, it is reasonable to assume, is likely to make.

(4) If—

(a) a building owner fails within a reasonable time to—

(i) make good damage under subsection (2)(a), the adjoining owner may apply to the court for an order requiring the damage to be made good and on such application the court may make such order as it thinks fit, or

(ii) reimburse costs and expenses under subsection (2)(a) or to pay reasonable costs or compensation under subsection (2)(b), the adjoining owner may recover such costs, expenses or compensation as a simple contract debt in a court of competent jurisdiction.

(b) an adjoining owner fails to meet a claim to a contribution under subsection (3)(a), the building owner may recover such contribution as a simple contract debt in a court of competent jurisdiction.

45.— (1) A building owner who is in dispute with an adjoining owner with respect to exercise of rights under section 44 may apply to the court for an order authorising the carrying out of specified works (a “ works order ”).

(2) In determining whether to make a works order and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard to section 44 and may take into account any other circumstances which it considers relevant.

46.— (1) Subject to subsection (3), a works order shall authorise the carrying out of the works specified, on such terms and conditions (including those necessary to comply with section 44) as the court thinks fit in the circumstances of the case.

(2) Without prejudice to the generality of subsection (1), a works order may—

(a) authorise the building owner, and that owner’s agents, employees or servants, to enter on an adjoining owner’s building or unbuilt-on land for any purpose connected with the works,

(b) require the building owner to indemnify or give security to the adjoining owner for damage, costs and expenses caused by or arising from the works or likely so to be caused or to arise.

(3) A works order shall not authorise any permanent interference with, or loss of, any easement of light or other easement or other right relating to a party structure.

47.— On the application of any person affected by a works order, the court may discharge or modify the order, on such terms and conditions as it thinks fit.

48.— In this Chapter, unless the context otherwise requires—

“developer” means the person who creates a scheme of development and that person’s successors in title;

“dominant land” means freehold land with the benefit of a covenant to which other freehold land is subject; and “dominant owner” shall be read accordingly and includes persons deriving title from or under that owner;

“freehold covenant” means a covenant attaching to dominant land and servient land which has been entered into after the commencement of this Chapter;

“persons deriving title” include—

(a) a person who has acquired title to the land by possession under the Act of 1957;

(b) a mortgagee, or receiver appointed by a mortgagee, in possession of the land;

“scheme of development” means a development of land under which—

(a) the land is, or is intended to be, subdivided into 2 or more parts for conveyance in fee simple to each owner of a part;

(b) there is an intention as between the developer and the owners of parts to create reciprocity of covenants in accordance with section 49 (3);

(c) that intention is expressed in each conveyance to the owners of parts or implied from the covenants in question as they relate to the parts and the proximity of the relationship between their owners;

“servient land” means freehold land which is subject to a covenant benefiting other freehold land; and “servient owner” shall be read accordingly and includes—

(a) persons deriving title from or under that owner, but not a tenant for a period less than 5 years,

(b) in the case of a covenant which is restrictive in substance, a licensee or other person in occupation of the land with or without the consent of that owner.

49.— (1) Subject to subsection (6), the rules of common law and equity (including the rule known as the rule in Tulk v. Moxhay) are abolished to the extent that they relate to the enforceability of a freehold covenant.

[CA 1881, ss. 58 and 59]

(2) Subject to subsections (3) to (6), any freehold covenant which imposes in respect of servient land an obligation to do or to refrain from doing any act or thing is enforceable—

(a) by—

(i) the dominant owner for the time being, or

(ii) a person who has ceased to be that owner but only in respect of any breach of covenant occurring during the period when that person was such owner,

(b) against—

(i) the servient owner for the time being in respect of any breach of covenant by that owner or which occurred before and continued unremedied after that person became the servient owner, or

(ii) a person who has ceased to be that owner, but only in respect of a breach of covenant which occurred during the period when that person was such owner.

(3) Where there is a scheme of development subsection (2) applies so as to render covenants which are capable of reciprocally benefiting and burdening the parts of land within the scheme enforceable by and against the owners for the time being of such parts or persons referred to in subsection (2)(a)(ii) and (2)(b)(ii).

(4) Where the servient land has been subdivided any obligations, whether to do or to refrain from doing any act or thing, relating to that land—

(a) are apportioned, as appropriate to the subdivided parts of the land, between those parts,

(b) are enforceable accordingly by or against the persons in whom the subdivided parts are vested,

as if those obligations had originally been entered into separately in respect only of each such part.

(5) Any dispute as to the application of subsection (4) to a particular case may be referred to the court for determination and, on such application, the court may order such apportionment as it thinks fit.

(6) This section—

(a) does not affect—

(i) the enforceability of a covenant under the doctrine of privity of contract or a covenant for title under section 80, or

(ii) the application to a freehold covenant of the Act of 1957,

(b) takes effect subject to the terms of the covenant or the instrument containing it.

50.— (1) A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.

(2) In determining whether to make an order under subsection (1) and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters—

(a) the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then,

(b) any change in the character of the dominant land and servient land or their neighbourhood,

(c) the development plan for the area under the Act of 2000,

(d) planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions,

(e) whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit,

(f) where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance,

(g) whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied,

(h) any representations made by any person interested in the performance of the covenant,

(i) any other matter which the court considers relevant.

(3) Where the court is satisfied that compliance with an order under subsection (1) will result in a quantifiable loss to the dominant owner or other person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or other person such compensation as the court thinks fit.

(4) An order under subsection (1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.

51.— (1) Subject to subsection (2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent.

[SF 1695, s. 2]

(2) Subsection (1) does not affect the law relating to part performance or other equitable doctrines.

(3) For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money’s worth is not necessary for an enforceable contract.

52.— (1) Subject to subsection (2), the entire beneficial interest passes to the purchaser on the making, after the commencement of this Chapter, of an enforceable contract for the sale or other disposition of land.

(2) Subsection (1) does not affect—

(a) the obligation of the vendor to maintain the land so long as possession of it is retained, or

(b) the liability of the vendor for loss or damage under any contractual provision dealing with such risk, or

(c) the vendor’s right to rescind the contract for failure by the purchaser to complete or other breach of the contract, or

(d) any provision to the contrary in the contract.

53.— (1) The rule of law restricting damages recoverable for breaches of contract occasioned by defects in title to land (known as the Rule in Bain v. Fothergill) is abolished.

(2) Subsection (1) applies only to contracts made after the commencement of this Chapter.

54.— Where the court refuses to grant specific performance of a contract for the sale or other disposition of land, or in any action for the return of a deposit, the court may, where it is just and equitable to do so, order the repayment of the whole or any part of any deposit, with or without interest.

55.— (1) Any party to a contract for the sale or other disposition of land may apply to the court in a summary manner for an order determining a question relating to the contract.

[VPA 1874, s. 9]

(2) On such an application the court may make such order, including an order as to costs, as it thinks fit.

(3) A question in respect of which an application may be made under subsection (1) includes a question relating to any requisition, objection, claim for compensation or other question arising out of or connected with the contract, but does not include a question affecting the existence or validity of the contract.

56.— (1) Subject to subsections (2) and (3), after the commencement of this Chapter, a period of at least 15 years commencing with a good root of title is the period for proof of title which the purchaser may require.

[VPA 1874, s. 1]

(2) Where the title originates with a fee farm grant or lease, subsection (1) does not prevent the purchaser from requiring production of the fee farm grant or lease.

(3) Subsection (1) takes effect subject to the terms of the contract for the sale or other disposition of the land.

57.— (1) Subject to subsections (2) and (5), under a contract to grant or assign a tenancy or subtenancy of land, the intended grantee or assignee is not entitled to call for the title to—

[VPA 1874, s. 2]

[CA 1881, ss. 3 and 13]

(a) the fee simple, or

[CA 1882, s. 4]

(b) any tenancy superior to that out of which the subtenancy is, or is to be, immediately derived.

(2) Subject to subsection (5), under a contract made after the commencement of this Chapter to grant a tenancy or subtenancy for a term exceeding 5 years the intended grantee may call for—

(a) in the case of a tenancy to be derived immediately out of the fee simple, a copy of the conveyance of that estate to the grantor, or

(b) in the case of a subtenancy, a copy of the superior lease out of which it is to be immediately derived and, if any, of the immediate assignment of the superior lease to the grantor,

and, where the tenancy or subtenancy is granted for the full market rent, taking into account any premium also paid by, but disregarding any concessions or inducements made to, the intended grantee, that grantee may also call for 15 years’ title as a purchaser under section 56 (1).

(3) For the purpose of the deduction of title to an intended assignee, no preliminary contract for or relating to the tenancy forms part of the title, or evidence of the title, to the tenancy.

(4) Where by reason of subsection (1) an intended grantee or assignee is not entitled to call for the title to the fee simple or a superior tenancy, that person, where the contract is made after the commencement of this Chapter, is not affected with notice of any matter or thing of which, if the contract had specified that such title should be furnished, that person might have had notice.

(5) Subsections (1) and (2) take effect subject to the terms of the contract for the grant or assignment of the tenancy or subtenancy.

58.— (1) Subject to subsection (2), a purchaser of land is not entitled to require—

[VPA 1874, s. 2]

[CA 1881, s. 3]

(a) the production of an instrument dated or made before the period referred to in section 56, or stipulated in the contract for sale, for the commencement of the title, even though the instrument creates a power subsequently exercised by an instrument produced to the purchaser, or

(b) any information, or make any requisition, objection or inquiry with respect to any instrument referred to in paragraph (a) or the title prior to that period, notwithstanding that any instrument, or that prior title, is recited, agreed to be produced or noticed,

and the purchaser shall assume, unless the contrary appears, that—

(i) the recitals contained in the instruments produced, relating to any instrument forming part of that prior title are correct, and give all the material contents of the instrument so recited, and

(ii) every instrument so recited was duly executed by all necessary parties, and perfected, if and as required, by any act required or permitted by law.

(2) Subsection (1) does not deprive a purchaser of the right to require the production of any—

(a) power of attorney under which any instrument which is produced is executed, or

(b) instrument creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the land is disposed of by an instrument which is produced, or a copy of which is produced, or

(c) instrument creating any limitation or trust by reference to which any part of the land is disposed of by an instrument which is produced.

(3) On a sale of land, the purchaser, where the purchaser requires the vendor to carry out such matters, shall bear the expenses (except where such expenses should be borne by the vendor in compliance with the obligation to deduce title) of—

(a) production and inspection of all instruments, letters of administration, probates, proceedings at courts, records, statutory provisions and other documents not in the possession of the vendor, or the vendor’s mortgagee or trustee,

(b) making, procuring, producing, searching for and verifying all certificates, declarations, evidence and information, and all attested, office, stamped or other copies or abstracts of, or extracts from, any statutory provisions or other documents, not in the possession of the vendor or the vendor’s mortgagee or trustee,

(c) making any copy, whether attested or unattested, of any document retained by the vendor, or the vendor’s mortgagee or trustee, required to be delivered by the purchaser.

(4) On a sale of land in lots, a purchaser of two or more lots held wholly or partly under the same title is entitled to no more than one abstract of the common title, nor to more than one copy of any document forming part of the common title, except at the purchaser’s own expense.

(5) The inability of a vendor to furnish the purchaser with an acknowledgment of the right to production and delivery of copies of documents of title is not an objection to title where the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.

(6) Such acknowledgments and such undertakings for the safe custody of documents as the purchaser requires shall be furnished at the purchaser’s expense, and the vendor shall bear the expense of perusal and execution on behalf of or by the vendor, and on behalf of and by necessary parties other than the purchaser.

(7) A vendor may retain a document of title where—

(a) the vendor retains any part of the land to which the document relates, or

(b) the document comprises an instrument—

(i) creating a trust which still exists, or

(ii) relating to the appointment or discharge of a trustee of an existing trust.

(8) This section takes effect subject to the terms of the contract for the sale or other disposition of the land.

(9) Nothing in this section is to be read as binding a purchaser to complete the purchase in any case where, on a contract made without reference to this section but containing stipulations similar to any of its provisions, specific performance would not be granted by the court against the purchaser.

(10) In this section—

(a) “instrument” includes a copy or abstract,

(b) “production” includes furnishing a copy or abstract and cognate words shall be read accordingly.

59.— (1) Recitals, statements and descriptions of facts, matters and parties contained in instruments, statutory provisions or statutory declarations 15 years old at the date of the contract are, unless and except so far as they are proved to be inaccurate, sufficient evidence of the truth of such facts, matters and parties.

[VPA 1874, s. 2][CA 1881, s. 3]

(2) Where land sold is held under a tenancy (other than a subtenancy), the purchaser shall assume, unless the contrary appears, that the tenancy was duly granted; and, on production of the receipt for the last payment due for rent under the tenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the tenancy have been duly performed and observed up to the date of actual completion of the purchase.

(3) Where land sold is held under a subtenancy, the purchaser shall assume, unless the contrary appears, that the subtenancy and every superior tenancy were duly granted; and, on production of the receipt for the last payment due for rent under the subtenancy before the date of the actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the subtenancy have been duly performed and observed up to the date of actual completion of the purchase, and also that all rent due under, and all covenants and provisions of, every superior tenancy have been paid and duly performed and observed up to that date.

60.— (1) Any person disposing of land to a purchaser, or the solicitor or other agent of such a person, who with intent to defraud—

[LPAA 1859, s. 24][LPAA 1860, s. 8]

(a) conceals from the purchaser any instrument or incumbrance material to the title, or

(b) falsifies any information or matter on which the title may depend in order to induce the purchaser to accept the title offered or produced,

is guilty of an offence under this Act.

(2) Any such person or the person’s solicitor or agent is also liable to an action for damages by the purchaser, or persons deriving title under the purchaser, for any loss sustained by reason of—

(a) the concealment of the instrument or incumbrance, or

(b) any claim made by a person whose title to the land was concealed by such falsification.

(3) In estimating damages, where the land is recovered from the purchaser or persons deriving title under the purchaser, regard shall be had to any expenditure by them on improving the land.

(4) Nothing in this section affects the provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001.

61.— (1) Where land having a common title with other land is conveyed to a purchaser (other than a tenant or mortgagee) who does not hold or obtain possession of the documents forming the common title, the purchaser, notwithstanding a stipulation to the contrary in the contract or conveyance, may require that a memorandum giving notice of any provisions in the conveyance restricting user of or conferring rights over any other land comprised in the common title is endorsed on or permanently annexed to some document selected by the purchaser but retained in the possession or control of the vendor and being or forming part of the common title.

[CA 1911, s. 11]

(2) The title of any person omitting to require an endorsement or annexation under this section is not affected or prejudiced merely by such omission.

(3) This section does not apply to registered land.

62.— (1) Subject to section 63, a legal estate or interest in land may only be created or conveyed by a deed.

[SU 1634] [RPA 1845, ss. 2 and 3]

(2) A deed executed after the commencement of this Chapter is fully effective for such purposes without the need for any conveyance to uses and passes possession or the right to possession of the land, without actual entry, unless subject to some prior right to possession.

(3) In the case of a voluntary conveyance executed after the commencement of this Chapter, a resulting use for the grantor is not implied merely because the land is not expressed to be conveyed for the use or benefit of the grantee.

(4) A bargain and sale, covenant to stand seised, feoffment with livery of seisin or any combination of these are no longer effective to create or to convey a legal estate or legal interest in land.

63.—Section 62(1) does not apply to—

(a) an assent by a personal representative,

(b) a surrender or other conveyance taking effect by operation of law,

(c) a disclaimer not required to be by deed,

(d) a grant or assignment of a tenancy not required to be by deed,

(e) a receipt not required to be by deed,

(f) a vesting order of the court or other competent authority, or

(g) any other conveyance which may be prescribed.

64.— (1) Any rule of law which requires—

(a) a seal for the valid execution of a deed by an individual, or

(b) authority to deliver a deed to be given by deed,

is abolished.

(2) An instrument executed after the commencement of this Chapter is a deed if it is—

(a) described at its head by words such as “Assignment”, “Conveyance”, “Charge”, “Deed”, “Indenture”, “Lease”, “Mortgage”, “Surrender” or other heading appropriate to the deed in question, or it is otherwise made clear on its face that it is intended by the person making it, or the parties to it, to be a deed, by expressing it to be executed or signed as a deed,

(b) executed in the following manner:

(i) if made by an individual—

(I) it is signed by the individual in the presence of a witness who attests the signature, or

(II) it is signed by a person at the individual’s direction given in the presence of a witness who attests the signature, or

(III) the individual’s signature is acknowledged by him or her in the presence of a witness who attests the signature;

(ii) if made by a company registered in the State, it is executed under the seal of the company in accordance with its Articles of Association;

(iii) if made by a body corporate registered in the State other than a company, it is executed in accordance with the legal requirements governing execution of deeds by such a body corporate;

(iv) if made by a foreign body corporate, it is executed in accordance with the legal requirements governing execution of the instrument in question by such a body corporate in the jurisdiction where it is incorporated,

and

(c) delivered as a deed by the person executing it or by a person authorised to do so on that person’s behalf.

(3) Any deed executed under this section has effect as if it were a document executed under seal.

(4) A deed, whenever created, has the effect of an indenture although not indented or expressed to be an indenture.

65.— (1) Any rule of law to the effect that the affixing of a corporate seal to an instrument effects delivery by that body corporate is abolished.

(2) An instrument executed by a body corporate in accordance with section 64 (2) (b) is capable of operating as an escrow in the same circumstances and with the same consequences as an instrument executed by an individual.

66.— (1) Any property may be conveyed by a person to that person jointly with another person in the same way in which it might be conveyed by that person to another person.

[LPAA 1859, s. 21][CA 1881, s. 50]

(2) Subject to subsection (3)—

(a) a person may convey, but not lease, property to that same person in a different capacity,

(b) two or more persons may convey, and have always been capable of conveying, any property vested in them to any one or more of themselves in the same way in which they could convey it to a third person.

(3) Subsection (2) does not validate a conveyance made in breach of trust or other fiduciary obligation.

(4) Without prejudice to section 83, this section does not affect any rule of law under which a covenant entered into with oneself is unenforceable.

67.— (1) A conveyance of unregistered land with or without words of limitation, or any equivalent expression, passes the fee simple or the other entire estate or interest which the grantor had power to create or convey, unless a contrary intention appears in the conveyance.

[CA 1881, s. 51]

(2) A conveyance of unregistered land to a corporation sole by that person’s corporate designation without the word “successors” passes to the corporation the fee simple or the other entire estate or interest which the grantor had power to create or convey, unless a contrary intention appears in the conveyance.

(3) Where an interest in land is expressed to be given to—

(a) the heir or heirs, or

(b) any particular heir, or

(c) any class of heirs, or

(d) issue,

of any person in words which, under the rule known as the Rule in Shelley’s Case, would have operated to give that person a fee simple, those words operate as words of purchase and not of limitation and take effect in equity accordingly.

(4) Subject to section 68, subsections (1) to (3) apply to conveyances executed before the commencement of this Chapter, but without prejudice to any act or thing done or any interest disposed of or acquired before that commencement in consequence of the failure to use words of limitation in such a conveyance or the application of the Rule in Shelley’s Case.

68.— (1) An interest—

(a) to which a person was entitled, or

(b) acquired by a person,

before the commencement of this Chapter in consequence of the failure to use words of limitation in a conveyance executed before that commencement or the application of the Rule in Shelley’s Case is extinguished unless the person claiming to be entitled to the interest or to have acquired it—

(i) applies to the court, within 12 years from the commencement of this Chapter, for an order under this section, and

(ii) registers any order made under this section in accordance with subsection (3).

(2) On such an application the court may—

(a) make an order declaring that the applicant is entitled to the interest or has acquired it,

(b) refuse to make such an order if it is satisfied that no substantial injustice will be done to any party, or

(c) in lieu of a declaration in favour of the applicant, order payment by another party of such compensation to the applicant as the court thinks appropriate.

(3) An order under this section shall be registered in the Registry of Deeds or Land Registry, as appropriate.

69.— (1) A reservation of a legal estate or interest in a conveyance of land operates, without execution of the conveyance or of any regrant by the grantee, to—

[CA 1881, s. 62]

(a) vest that estate or interest in the grantor or other person for whose benefit it is made, and

(b) annex it to the land, if any, for the benefit of which it is made.

(2) A conveyance of land expressed to be subject to a legal estate or interest which is not in existence immediately before the date of the conveyance operates as a reservation within the meaning of subsection (1), unless a contrary intention is expressed in the conveyance.

(3) For the purpose of construing the effect of a conveyance of land, a reservation shall not be treated as taking effect as a regrant.

(4) This section applies only to reservations made after the commencement of this Part.

70.— (1) Where a deed is expressed to confer an estate or interest in land, or the benefit of a covenant or right relating to land, on a person, that person may enforce the deed whether or not named a party to it.

[RPA 1845, s. 5]

(2) Nothing in this section otherwise affects the doctrine of privity of contract.

71.— (1) A conveyance of land includes, and conveys with the land, all—

[CA 1881, s. 6]

(a) buildings, commons, ditches, drains, erections, fences, fixtures, hedges, water, watercourses and other features forming part of the land,

(b) advantages, easements, liberties, privileges, profits à prendre and rights appertaining or annexed to the land.

(2) A conveyance of land which has houses or other buildings on it includes, and conveys with the land, houses or other buildings all—

(a) areas, cellars, cisterns, courts, courtyards, drainpipes, drains, erections, fixtures, gardens, lights, outhouses, passages, sewers, watercourses, yards and other features forming part of the land, houses or other buildings,

(b) advantages, easements, liberties, privileges, profits à prendre and rights appertaining or annexed to the land, houses or other buildings.

(3) This section—

(a) does not on a conveyance of land (whether or not it has houses or other buildings on it)—

(i) create any new interest or right or convert any quasi-interest or right existing prior to the conveyance into a full interest or right, or

(ii) extend the scope of, or convert into a new interest or right, any licence, privilege or other interest or right existing before the conveyance,

(b) does not—

(i) give to any person a better title to any land, interest or right referred to in this section than the title which the conveyance gives to the land expressed to be conveyed, or

(ii) convey to any person any land, interest or right further or other than that which could have been conveyed to that person by the grantor,

(c) takes effect subject to the terms of the conveyance.

72.— (1) Any instrument expressed to be supplemental to a previous instrument, or directed to be read as an annex to such an instrument, is, so far as is appropriate, to be read and has effect as if the instrument so expressed or directed—

[CA 1881, s. 53]

(a) were made by way of endorsement on the previous instrument, or

(b) contained a full recital of the previous instrument.

(2) This section does not confer on a purchaser any right to an abstract, copy 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.

73.— (1) A release of part of land from—

[LPAA 1859, ss. 10 and 11]

(a) a rentcharge does not extinguish the rentcharge, but bars only the right to recover any part of the rentcharge out of the land released,

(b) a judgment charged on the land does not affect the validity of the judgment as regards any of the land not specifically released.

(2) Subsection (1) does not—

(a) prejudice the rights of any person interested in the land unreleased and not concurring in or confirming the release, or

(b) prevent recovery of the whole of the rentcharge or enforcement of the whole judgment against the land unreleased, unless those interested agree otherwise.

74.— (1) F5[Subject to subsections (2), (5) and (6)], any voluntary disposition of land made with the intention of defrauding a subsequent purchaser of the land is voidable by that purchaser.

[CA 1634, ss. 1 to 5, 10, 11 and 14][VCA 1893]

(2) For the purposes of subsection (1), a voluntary disposition is not to be read as intended to defraud merely because a subsequent disposition of the same land was made for valuable consideration.

(3) F5[Subject to subsections (4), (5) and (6)], any conveyance of property made with the intention of defrauding a creditor or other person is voidable by any person thereby prejudiced.

(4) Subsection (3) does not—

(a) apply to any estate or interest in property conveyed for valuable consideration to any person in good faith not having, at the time of the conveyance, notice of the fraudulent intention, or

(b) affect any other law relating to bankruptcy of an individual or corporate insolvency.

F6[ (5) The disposal of any property of an authorised credit institution within the meaning of the Central Bank and Credit Institutions (Resolution) Act 2011 pursuant to an order under that Act does not amount to a voluntary disposition or a conveyance of property.]

F7[(6) The disposal of any property, or interest in property, of IBRC (within the meaning of the Irish Bank Resolution Corporation Act 2013), and whether effected before or after the passing of the Irish Bank Resolution Corporation Act 2013, does not amount to a voluntary disposition or a conveyance of property.]

75.— Particular words and expressions used in any instrument relating to land executed or made after the commencement of this Chapter, unless the context otherwise requires—

(a) are subject to the same general rules of construction as are applicable to such words and expressions used in Acts of the Oireachtas under Part 4 of the Act of 2005,

(b) have the same particular meaning, construction or effect as assigned to such words and expressions used in Acts of the Oireachtas by Part 1 of the Schedule to that Act or by section 3 of this Act, whichever is more appropriate.

76.— (1) Subject to subsection (2), a conveyance of land passes all the claim, demand, estate, interest, right and title which the grantor has or has power to convey in, to or on the land conveyed or expressed or intended to be conveyed.

[CA 1881, s. 63]

(2) This section takes effect subject to the terms of the conveyance.

77.— (1) A receipt for consideration in the body of a deed is sufficient discharge for the consideration to the person giving it, without any further receipt being endorsed on the deed.

[CA 1881, ss. 54 to 56]

(2) A receipt for consideration in the body of a deed is, in favour of a subsequent purchaser (not having notice that the consideration so acknowledged to be received was not, in fact, given wholly or in part), conclusive evidence of the giving of the whole consideration.

(3) Where a solicitor produces a deed which—

(a) has in its body a receipt for consideration, and

(b) has been executed by the person entitled to give a receipt for the consideration,

the deed is conclusive authority to the person liable to give the consideration for giving it to the solicitor, without the solicitor producing any separate or other authority or direction in that behalf from the person who executed or signed the deed or receipt.

(4) In subsection (3)“solicitor” includes any employee of a solicitor, and any member or employee of a firm in which the solicitor is a partner, and any such employee or member of another firm acting as agent of the solicitor or firm.

78.— (1) An exchange or other conveyance of land does not imply any condition in law.

[RPA 1845, s. 4]

(2) Subject to any statutory provision, use of the word “give” or “grant” in any conveyance does not imply any covenant.

79.— In sections 80 and 81—

(a) “conveyance”—

(i) does not include the granting of a tenancy,

(ii) means a conveyance made after the commencement of this Chapter,

(b) any reference to a person being expressed to “convey”, or to an estate or interest or land being expressed to be “conveyed” does not mean that the words “convey” or “conveyed” must be used in the conveyance for the covenant to be implied.

80.— (1) In a conveyance of any class referred to in subsection (2) there are implied the covenants specified in relation to that class in Part 2 of Schedule 3, and those covenants are deemed to be made—

[CA 1881, s. 7]

(a) by the person or by each person who conveys, to the extent of the estate or interest or share of the estate or interest expressed to be conveyed by such person (“the subject-matter of the conveyance”),

(b) with the person to whom the conveyance is made, or with the persons jointly and severally, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common,

and have the effect specified in Parts 1 and 2 of Schedule 3 .

(2) The classes of conveyance referred to in subsection (1) are—

(3) Where a conveyance is made by a person who is expressed to convey by direction of another person who is expressed to direct “as beneficial owner”, then, whether or not that other person is also expressed to convey “as beneficial owner”, the conveyance is for the purposes of this section a conveyance made by that other person expressed to convey “as beneficial owner” to the extent of the subject-matter of the conveyance made by that other person’s direction.

(4) Without prejudice to section 52(6) of the Act of 1965, where in a conveyance a person conveying is not expressed to convey “as beneficial owner”, “as trustee”, “as mortgagee”, “as personal representative”, under an order of the court or by a direction of a person “as beneficial owner”, no covenant on the part of the person conveying is implied in the conveyance.

(5) The benefit of a covenant implied under this section—

(a) is annexed to and passes with the estate or interest of the implied covenantee,

(b) is enforceable by every person, including a tenant, mortgagee and any other person deriving title from or under the implied covenantee, in whom that estate or interest, or any part of it, or an estate or interest derived out of it, is vested from time to time.

(6) A covenant implied under this section may, by the terms of the conveyance, be—

(a) excluded but not so that a sole covenant or all (as distinct from some only) of the covenants implied in relation to a person expressed to convey as specified in subsection (2) are excluded,

(b) modified and, if so modified, operates as if the modification was included in this section and Schedule 3.

(7) Any covenant implied under this section by reason of a person being expressed to convey “as beneficial owner” may, by express reference to this section, be incorporated, with or without modification, in a conveyance, whether or not for valuable consideration, by a person who is expressed to convey as specified in Class 5 of subsection (2).

81.— (1) In a conveyance of any class referred to in subsection (2) there are implied, in addition to the covenants referred to in section 80(1), the covenants specified in relation to that class in Part 3 of Schedule 3, and those covenants are deemed to be made—

(a) by the person, or by the persons jointly and severally, if more than one, so specified in relation to any class of conveyance,

(b) with the person, or with the persons jointly and severally, if more than one, who is the other party, or are the other parties, to the conveyance,

and have the effect specified in Parts 1 and 3 of Schedule 3 .

(2) The classes of conveyance referred to in subsection (1) are—

(3) Where in a conveyance (other than a mortgage) part of land comprised in a lease is, without the consent of the lessor, expressed to be conveyed—

(a) subject to the entire rent, then covenant (1) in paragraph (2) of Part 3 of Schedule 3 has effect as if the entire rent were the apportioned rent,

(b) exonerated from the entire rent, then covenant (2) in paragraph (2) of Part 3 of Schedule 3 has effect as if the entire rent were the balance of the rent, and “(other than the covenant to pay the entire rent)” were omitted from the covenant.

(4) The benefit of a covenant implied under this section—

(a) is annexed to and passes with the estate or interest of the implied covenantee,

(b) is enforceable by every person, including a tenant, mortgagee and any other person deriving title from or under the implied covenantee, in whom that estate or interest, or any part of it, or an estate or interest derived out of it, is vested from time to time.

(5) Any covenant implied under this section may, by the terms of the conveyance, be—

(a) modified by the express provisions of the conveyance and, if so modified, operates as if the modification were included in this section and Schedule 3 ,

(b) extended by providing expressly in the conveyance that—

(i) the land conveyed, or

(ii) the part of the land which remains vested in the covenantor,

stands charged with the payment of all money which would otherwise become payable under the implied covenant.

82.— (1) Where under a covenant persons are—

[CA 1881, s. 60]

(a) covenantors, the covenant binds them and any two or more of them jointly and each of them severally,

(b) covenantees, the covenant shall be construed as being also made with each of them.

(2) A covenant made with persons jointly to convey, pay money or do any other act to them or for their benefit, implies an obligation to do the act to, or for the benefit of—

(a) the survivor or survivors of them, or

(b) any other person on whom the right to sue on the covenant devolves.

(3) This section takes effect subject to the terms of the covenant or conveyance in which it is contained or implied or of any statutory provision implying the covenant.

(4) In this section “covenant” includes an express or implied covenant and a bond or obligation contained in a deed.

83.— A covenant, whether express or implied, entered into by a person with that person jointly with another person or other persons shall be construed and is enforceable as if it had been entered into with that other person or persons alone.

84.— (1) Where a person retains possession of documents and gives to another person in writing—

[CA 1881, s. 9]

(a) an acknowledgment of the right of that other to production of those documents and to delivery of copies of them (“the acknowledgment”),

(b) an undertaking for the safe custody of those documents (“the undertaking”),

the acknowledgment and the undertaking have the effect specified in this section.

(2) The obligations imposed by an acknowledgment are to—

(a) produce the documents or any of them at all reasonable times for the purpose of inspection and of comparison with abstracts or copies of the documents, by the person entitled to request production or by any person authorised in writing by that person,

(b) produce the documents or any of them in court or any other place where, or on any occasion when, production may properly be required for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relating to that title or claim,

(c) deliver to the person entitled to request them such copies or abstracts, attested or unattested, of or from the documents or any of them.

(3) The obligation imposed by an undertaking is to keep the documents complete, safe, uncancelled and undefaced.

(4) The obligations shall be performed from time to time—

(a) in the case of the acknowledgment, at the request in writing of,

(b) in the case of the undertaking, in favour of,

the person to whom it is given, or any person, not being a tenant, who has or who claims any estate, interest or right through or under that person or who otherwise becomes through or under that person interested in or affected by the terms of the document to which the acknowledgment or undertaking relates.

(5) The acknowledgment and undertaking bind the documents to which they relate in the possession or under the control of the person who retains them and every other person having possession or control of them from time to time but they bind each such individual possessor or person as long only as that person has possession or control.

(6) Each person having possession or control of such documents is bound specifically to perform the obligations imposed by this section, unless prevented from doing so by fire or other inevitable accident, but all costs and expenses of or incidental to specific performance of the acknowledgment shall be paid by the person requesting performance.

(7) The acknowledgment does not confer any right to damages for loss or destruction of, or injury to, the documents to which it relates, arising from whatever cause.

(8) Any person claiming to be entitled to the benefit of an undertaking may apply to the court for damages for any loss or destruction of, or injury to, the documents or any of them to which it relates.

(9) Upon such application the court may direct such inquiries and make such order as to costs or other matters as it thinks fit.

(10) An acknowledgment or undertaking under this section satisfies any liability to give a covenant for production and delivery of copies of or extracts from documents or for safe custody of documents.

(11) The rights conferred by an acknowledgment or undertaking under this section are in addition to all such other rights relating to production, inspection or obtaining copies of documents as are not satisfied by the giving of the acknowledgment or undertaking.

(12) This section—

(a) has effect where an acknowledgment or undertaking is given by a person to that same person in different capacities in the same way as where it is given by one person to another,

(b) takes effect subject to the terms of the acknowledgment or undertaking.

85.— (1) Subject to subsection (2), where an instrument makes provision for giving or serving a notice it may be given or served as if it were authorised or required to be given or served under this Act.

(2) Subsection (1) takes effect subject to the terms of the instrument.

86.— (1) A purchaser is not affected prejudicially by notice of any fact, instrument, matter or thing unless—

[CA 1882, s. 3]

(a) it is within the purchaser’s own knowledge or would have come to the purchaser’s knowledge if such inquiries and inspections had been made as ought reasonably to have been made by the purchaser, or

(b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of the purchaser’s counsel, as such, or solicitor or other agent, as such, or would have come to the knowledge of the solicitor or other agent if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or agent.

(2) Without prejudice to section 57(4), subsection (1) does not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant, provision or restriction contained in any instrument under which the purchaser’s title is derived, immediately or mediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been enacted.

(3) A purchaser is not, by reason of anything in this section, affected by notice in any case where the purchaser would not have been so affected if this section had not been enacted.

87.— (1) Without prejudice to any ground of appeal against any order, an order of the court under any statutory or other jurisdiction is not invalid as against a purchaser on the ground of want of—

[CA 1881, s. 70]

(a) jurisdiction, or

(b) any concurrence, consent, notice or service.

(2) This section applies to any lease, sale or other act under the authority of the court and purporting to be in pursuance of any statutory provision, notwithstanding any exception in that provision.

88.— With a view to facilitating electronic conveyancing of land or providing further protection for the interests of vendors and purchasers of land, the following matters may be prescribed:

(a) the general conditions of sale applicable to a contract for the sale or other disposition of an estate or interest in land;

(b) any other matter referred to in this Part.

89.— (1) A legal mortgage of land may only be created by a charge by deed and such a charge, unless the context requires otherwise, is referred to in this Part as a “mortgage”; and “mortgagor” and “mortgagee” shall be read accordingly.

(2) Subject to subsection (3), from the commencement of this Chapter—

(a) any instrument which would, but for the provisions of this section, convey a legal estate or interest in land by way of mortgage, or

(b) any other transaction which under any instrument would operate, but for the provisions of this section, as a mortgage by conveyance of a legal estate or interest in land,

does not create a legal mortgage.

(3) From the commencement of this Chapter, any transaction which under any statutory provision would, but for the provisions of this section, operate as a mortgage by conveyance of a legal estate or interest in land operates as if it were a mortgage under this Part.

(4) From the commencement of this Chapter, any power, whenever created, to mortgage or lend money on mortgage of a legal estate or interest in land operates as a power to mortgage the legal estate or interest by a mortgage under this Part or to lend money on the security of such a mortgage.

(5) This Part applies to both unregistered and registered land.

(6) Nothing in this section affects the creation of equitable mortgages of land.

(7) From the commencement of this Chapter, it is not possible to create a Welsh mortgage and any purported creation of such a mortgage is void.

(8) For the purposes of subsection (7), a “Welsh mortgage” includes any transaction under which a grantee or chargee of land is entitled to hold possession, and take rents and profits in lieu of interest on a loan, of land without the grantor or chargor being under a personal obligation to repay the loan, but being entitled to redeem.

90.— (1) Subject to this Part, where a mortgage is created after the commencement of this Chapter—

(a) the mortgagor has the same powers and rights and the same protection at law and in equity as the mortgagor would have been entitled to,

(b) the mortgagee has the same obligations, powers and rights as the mortgagee would have had,

if the mortgagee’s security had been created by a conveyance before that commencement of the legal estate or interest in the land of the mortgagor.

(2) Without prejudice to the generality of subsection (1)(b) and subject to subsection (3), a first mortgagee has the same right to possession of documents of title as such mortgagee would have had if the security had been created by a conveyance before the commencement of this Chapter.

(3) Notwithstanding any stipulation to the contrary, a mortgagee who retains possession or control of documents of title relating to the mortgaged land is, in addition to being subject to the mortgagor’s rights under section 91, responsible for their safe custody as if an undertaking for this were given under section 84.

91.— (1) Subject to subsection (2), a mortgagor, as long as the right to redeem exists, may from time to time, at reasonable times, inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the possession or power of the mortgagee.

[CA 1881, s. 16]

(2) Rights under subsection (1) are exercisable—

(a) on the request of the mortgagor, and

(b) on payment by the mortgagor of the mortgagee’s reasonable costs and expenses in relation to the exercise.

(3) Subsection (1) has effect notwithstanding any stipulation to the contrary.

92.— Notwithstanding any stipulation to the contrary, a mortgagor is entitled to redeem any housing loan mortgage without having to pay any money due under any other mortgage with the same mortgagee, whether that other mortgage is of the same or other property.

[CA 1881, s. 17]

93.— (1) A mortgagor who is entitled to redeem may, subject to compliance with the terms on which the mortgagor would be entitled to require a discharge, require the mortgagee, instead of discharging the mortgage, to assign the mortgage debt and transfer the mortgage to any third person, as the mortgagor directs, and on the mortgagor so directing, the mortgagee is bound to assign and transfer accordingly.

[CA 1881, s. 15][CA 1882, s. 12]

(2) The rights conferred by subsection (1) belong to and may be enforced by each incumbrancer or the mortgagor notwithstanding any intermediate incumbrance, but a requisition of an incumbrancer prevails over a requisition of the mortgagor and, as between incumbrancers, a requisition of a prior incumbrancer prevails over a requisition of a subsequent incumbrancer.

(3) This section—

(a) does not apply in the case of a mortgagee being or having been in possession,

(b) applies notwithstanding any stipulation to the contrary.

94.— (1) This section applies to any action brought by a mortgagor for—

(a) redemption, or

(b) sale, or

(c) the raising and payment in any manner of the mortgage debt, or

(d) any combination of these in the alternative.

(2) In any action to which this section applies the court may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit.

(3) Without prejudice to the generality of the court’s discretion under subsection (2), it may—

(a) allow any time for redemption or payment of the mortgage debt,

(b) require lodgment in court of a sum to meet the expenses of a sale and to secure a performance of its terms,

(c) give directions as to costs and require the giving of security for costs,

(d) direct a sale without previously determining priorities of incumbrances,

(e) give the conduct of the sale to a particular party,

(f) make a vesting order conveying the mortgaged property to a purchaser or appoint a person to make such a conveyance.

(4) Except in the case of a housing loan mortgage, this section takes effect subject to the terms of the mortgage.

95.— (1) Where—

[CA 1881, s. 61]

(a) money advanced or owing under a mortgage, or any part of it, is expressed to be advanced by or owing to two or more persons out of money, or as money, belonging to them on a joint account, or

(b) such a mortgage is made to two or more persons jointly and not in shares,

the mortgage debt, or other money or money’s worth for the time being due to those persons, shall, as between them and the mortgagor, be deemed to belong to them on a joint account.

(2) The receipt in writing of—

(a) the survivors or last survivor of those persons, or

(b) the personal representative of the last survivor,

is a complete discharge for all money or money’s worth for the time being due, notwithstanding any notice to the payer of a severance of such joint account.

(3) This section takes effect subject to the terms of the mortgage.

(4) In this section “mortgage” includes an obligation for payment of money and a transfer of a mortgage or of such an obligation; and “mortgagor” shall be read accordingly.

96.— (1) Subject to this Part, the powers and rights of a mortgagee under sections 97 to 111—

(a) apply to any mortgage created by deed after the commencement of this Chapter,

(b) vest, subject to section 62 of the Act of 1964, as soon as the mortgage is created,

(c) do not become exercisable unless their exercise is for the purpose of protecting the mortgaged property or realising the mortgagee’s security,

(d) in relation to the mortgaged property, apply to any part of it.

(2) A mortgagee’s right of foreclosure is abolished.

(3) The provisions relating to the powers and rights conferred by this Chapter apply to any housing loan mortgage notwithstanding any stipulation to the contrary and notwithstanding any powers and rights expressly conferred under such a mortgage, but in relation to any other mortgage, except where this Part provides to the contrary, take effect subject to the terms of the mortgage.

97.— (1) Subject to section 98, a mortgagee shall not take possession of the mortgaged property without a court order granted under this section, unless the mortgagor consents in writing to such taking not more than 7 days prior to such taking.

(2) A mortgagee may apply to the court for an order for possession of the mortgaged property and on such application the court may, if it thinks fit, order that possession be granted to the applicant on such terms and conditions, if any, as it thinks fit.

98.— (1) Where a mortgagee has reasonable grounds for believing that—

(a) the mortgagor has abandoned the mortgaged property, and

(b) urgent steps are necessary to prevent deterioration of, or damage to, the property or entry on it by trespassers or other unauthorised persons,

the mortgagee may apply to the District Court, or any court already seised of any application or proceedings relating to the mortgaged property, for an order authorising the mortgagee to take possession of the property.

(2) On such an application the court may make an order authorising the mortgagee to take possession of the property on such terms and conditions as the court thinks fit, notwithstanding that the mortgagor dissents or does not appear.

(3) Without prejudice to the generality of subsection (2), an order under this section may specify—

(a) the period during which the mortgagee may retain possession of the mortgaged property,

(b) works which may be carried out by the mortgagee for the purpose of—

(i) protecting the mortgaged property, or

(ii) preparing it for sale in exercise of the mortgagee’s power under section 100,

(c) costs and expenses incurred by the mortgagee which may be added to the mortgage debt.

(4) The mortgagee is not liable to account strictly to the mortgagor during a period of possession under an order under this section.

99.— (1) Subject to the terms of any order under section 97 or section 98, a mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) shall take steps within a reasonable time to exercise the power to—

(a) sell the mortgaged property under section 100, or

(b) if it is not appropriate to sell, lease the property under section 112 and use the rent and any other income received from the lessee to reduce the mortgage debt, including interest accrued or accruing.

(2) Section 34 of the Act of 1957 does not apply to a mortgagee who takes possession of land under a court order under section 97 or section 98.

100.— (1) Subject to subsection (3) and sections 101 to 107, a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgaged property provided—

[CA 1881, ss. 19(1)(i), 20, 21(4), 21(6) and (7)]

[CA 1911, s. 5(2)]

(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,

and provided in each such case 28 days’ notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.

(2) The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.

(3) At any time after expiration of the 28 days’ notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit.

(4) An application under subsection (3) may be made with an application under section 97(2) and, in such case, both may be heard together.

(5) A mortgagee is not answerable for any involuntary loss resulting from the exercise or execution of the power of sale under this Chapter, of any trust connected with it or of any power or provision contained in the mortgage.

(6) Once the power of sale becomes exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property an estate or interest in priority to the mortgage, all deeds and documents relating to the property, or its title, which a purchaser under the power of sale would be entitled to demand and recover.

101.— (1) Upon an application for an order under, and without prejudice to the generality of, sections 97(2) and 100(3), where it appears to the court that the mortgagor is likely to be able within a reasonable period to pay any arrears, including interest, due under the mortgage or to remedy any other breach of obligation arising under it, the court may—

(a) adjourn the proceedings, or

(b) on making an order, or at any time before enforcement or implementation of such an order—

(i) stay the enforcement or implementation, or

(ii) postpone the date for delivery of possession to the mortgagee, or

(iii) suspend the order,

for such period or periods as it thinks reasonable and, if an order is suspended, the court may subsequently revive it.

(2) Any adjournment, stay, postponement or suspension under subsection (1) may be made subject to such terms and conditions with regard to payment by the mortgagor of any sum secured by the mortgage or remedying of any breach of obligation as the court thinks fit.

(3) The court may revoke or vary any term or condition imposed under subsection (2).

(4) Subject to subsection (5), an application under section 97(2) or section 100(3) may be made to the High Court.

(5) Where an application under section 97(2) or section 100(3) concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.

(6) The jurisdiction of the Circuit Court to hear and determine applications under sections 97(2) and 100(3) concerning property which is subject to a housing loan mortgage shall be exercised by the judge of the circuit where the property or any part of it is situated.

(7) Nothing in this section affects the jurisdiction of the court under sections 7 and 8 of the Act of 1976.

102.— Incidental to the power of sale are the powers to—

[CA 1881, s. 19(1)(i)][CA 1911, s. 4]

(a) sell the mortgaged property—

(i) subject to prior charges or not,

(ii) either together or in lots,

(iii) by public auction, tender or private contract,

(iv) subject to such conditions respecting title, evidence of title, or other matter as the mortgagee or other person selling thinks fit,

(b) rescind any contract for sale and resell,

(c) impose or reserve or make binding by covenant or otherwise, on the sold part of the mortgaged land, or on the unsold part, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, for the purpose of their more beneficial working, or with respect to any other matter,

(d) sell the mortgaged land, or all or any mines and minerals apart from the surface, with or without—

(i) any easement, right or privilege connected with building or other purposes on the sold part of the mortgaged land or the unsold part,

(ii) an exception or reservation of all or any of the mines and minerals in the mortgaged land and with or without a grant, reservation or imposition of powers of working, wayleaves, rights of way, rights of water and drainage and other powers, easements, rights and privileges for or connected with mining purposes, in relation to or on the sold part of the mortgaged land or the unsold part,

(iii) covenants by the purchaser to expend money on the land sold.

103.— (1) In the exercise of the power of sale conferred by thisChapteror any express power of sale, the mortgagee, or any receiver or other person appointed by the mortgagee, shall, notwithstanding any stipulation to the contrary in the mortgage, ensure as far as is reasonably practicable that the mortgaged property is sold at the best price reasonably obtainable.

(2) Within 28 days after completion of the sale, the mortgagee shall serve a notice in the prescribed form on the mortgagor containing information relating to the sale.

(3) A mortgagee who, without reasonable cause, is in breach of the obligation imposed by subsection (2) is guilty of an offence.

(4) Nothing in this section affects the operation of any rule of law relating to the duty of a mortgagee to account to a mortgagor.

(5) This section does not apply to a building society within the meaning of the Act of 1989 or a receiver appointed under the Companies Acts.

(6) In subsection (2)“mortgagor” includes a person last known to the mortgagee to be the mortgagor, but does not include a person to whom, without the knowledge of the mortgagee, any of the rights or liabilities of the mortgagor under the mortgage have been assigned.

104.— (1) A mortgagee exercising the power of sale conferred by this Chapter, or an express power of sale, has power to convey the property in accordance with subsection (2)—

[CA 1881, s. 21(1)]

(a) freed from all estates, interests and rights in respect of which the mortgage has priority,

(b) subject to all estates, interests and rights which have priority to the mortgage.

(2) Subject to subsections (3)(b) and (4), the conveyance—

(a) vests the estate or interest which has been mortgaged in the purchaser,

(b) extinguishes the mortgage, but without prejudice to any personal liability of the mortgagor not discharged out of the proceeds of sale,

(c) vests any fixtures or personal property included in the mortgage and the sale in the purchaser.

(3) This section—

(a) applies to a sale by a sub-mortgagee so as to enable the sub-mortgagee to convey the head-mortgagor’s property in the same manner as the mortgagee,

(b) does not apply to a mortgage of part only of a tenancy unless any rent which is reserved and any tenant’s covenants have been apportioned as regards the property mortgaged.

(4) Where the mortgaged property comprises registered land, the conveyance is subject to section 51 of the Act of 1964.

105.— (1) Where a conveyance is made in professed exercise of the power of sale conferred by this Chapter, the title of the purchaser is not impeachable on the ground that—

[CA 1881, s. 21(2)][CA 1911, s. 5(1)]

(a) no case had arisen to authorise the sale, or

(b) due notice had not been given, or

(c) the power was otherwise improperly exercised,

and a purchaser is not, either before or on conveyance, required to see or inquire whether the power is properly exercised.

(2) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the person exercising the power.

106.— (1) Subject to subsection (2), the receipt in writing of a mortgagee is a conclusive discharge for any money arising under the power of sale conferred by this Chapter, or for any money or securities comprised in the mortgage, or arising under it, and a person paying or transferring the same to the mortgagee is not required to inquire whether any money remains due under the mortgage.

[CA 1881, s. 22)]

(2) Subsection (1) does not apply where the purchaser has actual knowledge of an impropriety or irregularity in the exercise of the power of sale or knowingly participates in such an exercise.

(3) Subject to section 107(5), money received by a mortgagee under the mortgage or from the proceeds of securities comprised in it shall be applied as section 107 requires as regards money arising from a sale under the power of sale conferred by this Chapter.

107.— (1) Money received by the mortgagee which arises from the sale of mortgaged property shall be applied in the following order—

[CA 1881, s. 21(3)]

(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,

(b) in payment of all charges, costs and expenses properly incurred by the mortgagee as incident to the sale or any attempted sale or otherwise,

(c) in discharge of the mortgage debt, interest and costs, and other money, if any, due under the mortgage.

(2) Any residue of the money so received shall be held on trust by the mortgagee to be paid to the person who would, but for the sale, be the mortgagee secured on the property sold next in priority after the mortgagee selling, or is otherwise authorised to give receipts for the money so received, or, if there is no such person, the mortgagor.

(3) Where, in accordance with subsection (2), the mortgagee gives effect to the trust of the residue by paying it to a subsequent mortgagee, the latter shall apply it in accordance with subsections (1)(c) and (2) and similar obligations attach to each subsequent mortgagee who receives any of the residue.

(4) Any mortgagee who so gives effect to the trust is discharged from any further obligation with respect to the residue.

(5) For the purposes of the application of subsection (1)(b) to money received under section 106(3), charges, costs and expenses payable include those properly incurred in recovering and receiving the money or securities, and in conversion of securities into money, instead of those incident to the sale.

108.— (1) Where—

[CA 1881, ss. 19(1)(iii), 24(1)—(7)]

(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,

the mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt, may appoint, by writing, such person as the mortgagee or that other person thinks fit to be a receiver of—

(i) the income of the mortgaged property, or

(ii) if the mortgaged property comprises an interest in income, or a rentcharge or other annual or other periodical sum, that property.

(2) A receiver appointed under subsection (1) is the agent of the mortgagor, who is solely responsible for the receiver’s acts or defaults, unless the mortgage provides otherwise.

(3) The receiver may—

(a) demand and recover all the income to which the appointment relates, by action or otherwise, in the name either of the mortgagor or mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of,

(b) give effectual receipts accordingly for such income,

(c) exercise any powers delegated by the mortgagee or other person to the receiver.

(4) Any power delegated to the receiver shall be exercised in accordance with this Chapter.

(5) A person paying money to the receiver is not required to inquire whether the receiver is authorised to act.

(6) The receiver may be removed, and a new receiver may be appointed, by the mortgagee or the other person in writing.

(7) The receiver may retain out of any money received, for remuneration and in satisfaction of all costs incurred as receiver, a commission at the prescribed rate.

(8) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured and keep insured against loss or damage by fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance, out of the money received, any property comprised in the mortgage, whether affixed to land or not, which is of an insurable nature.

109.— (1) Subject to section 110(4), the receiver shall apply all money received in the following order—

[CA 1881, s. 24(8)]

(a) in discharge of all rates, rents, taxes and other outgoings affecting the mortgaged property,

(b) in discharge of all annual sums or other payments, and the interest on all principal sums, which have priority to the mortgage under which the receiver is appointed,

(c) in payment of the receiver’s commission,

(d) in payment of premiums on insurance, if any, payable under this Chapter or the mortgage,

(e) in defraying the cost of repairs as directed in writing by the mortgagee,

(f) in payment of interest accruing due in respect of any principal sum due under the mortgage,

(g) in or towards discharge of the principal sum, if so directed in writing by the mortgagee.

(2) The residue (if any) of any money so received after making the payments specified in subsection (1) shall be paid by the receiver to the person who, but for the possession of the receiver, would have been entitled to receive that money or who is otherwise entitled to the mortgaged property.

110.— (1) A mortgagee may insure and keep insured any building, effects or other property of an insurable nature, whether affixed to the land or not, which forms part of the mortgaged property.

[CA 1881, ss. 19(1)(ii), 23]

(2) The insurance shall be for the full reinstatement cost of repairing any loss or damage arising from fire, flood, storm, tempest or other perils commonly covered by a policy of comprehensive insurance.

(3) The mortgagee may give a good discharge for any money payable under any such insurance, but, subject to subsection (4), so much of such money as exceeds the mortgage debt shall be dealt with by the mortgagee as if it were the proceeds of a sale of the mortgaged property.

(4) The mortgagee may require any money received under such or other insurance of the mortgaged property to be applied—

(a) by the mortgagor in making good loss or damage covered by the insurance, or

(b) in or towards the discharge of the mortgage debt.

111.— (1) Where a mortgage is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the mortgagee is entitled, in priority to any subsequent mortgage, to the payment of any sum due in respect of any such future advances, except any advances which may have been made after the date of, and with express notice in writing of, the subsequent mortgage.

(2) In subsection (1)“future advances” includes sums from time to time due on a current account and all sums which by agreement or in the course of business between the parties are considered to be advances on the security of the mortgage.

(3) Save in regard to the making of such future advances the right to tack in any form is abolished, but without prejudice to any priority acquired by tacking before the commencement of this Chapter.

(4) This section—

(a) applies to mortgages made before or after the commencement of this Chapter,

(b) does not apply to registered land.

112.— (1) A mortgagor of land, while in possession, may, as against every other incumbrancer, lease the land with the consent in writing of the mortgagee, which consent shall not be unreasonably withheld.

[CA 1881, s. 18][CA 1911, s. 3]

(2) A lease made without such consent is voidable by a mortgagee who establishes that—

(a) the lessee had actual knowledge of the mortgage at the time of the granting of the lease, and

(b) the granting had prejudiced the mortgagee.

(3) A mortgagee of land while in possession or, after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver, may, as against all prior incumbrancers, if any, and the mortgagor, lease the land provided—

(a) it is for the purpose of—

(i) preserving the value of the land, or

(ii) protection of the mortgagee’s security, or

(iii) raising income to pay interest due under the mortgage or otherwise reduce the debt,

or

(b) it is otherwise an appropriate use of the land pending its sale, or

(c) the mortgagor consents in writing, or

(d) the court in any action relating to the mortgaged land makes an order permitting such lease.

(4) In this section “mortgagor” does not include an incumbrancer deriving title from or under the original mortgagor.

(5) The power of leasing conferred by this section applies only to mortgages created after the commencement of this Part.

113.— (1) A lease to be granted under section 112 shall—

(a) reserve the best rent which can reasonably be obtained, taking into account any premium or other capital sum paid by the lessee and other relevant circumstances, and

(b) be otherwise granted on the best terms that can reasonably be obtained and accord with good commercial practice,

and execution of the lease by the lessor shall be sufficient evidence of execution and delivery of the lease.

(2) A purported lease which fails to comply with subsection (1) is void.

(3) A duplicate of a lease granted in accordance with subsection (1) shall be executed by the lessee and delivered to the lessor.

(4) In the case of a lease by the mortgagor, the mortgagor shall, within one month after making the lease, deliver to the mortgagee or, where there are more than one, the mortgagee first in priority, a copy of the lease duly executed by the lessee.

(5) Failure by the mortgagor to comply with subsection (4) does not affect the validity of the lease.

(6) Where a premium or other capital sum is paid by the lessee and the lease is granted by—

(a) the mortgagor, it, or, where it exceeds the mortgage debt, so much of it as is required for the purpose, shall be applied in or towards discharge of that debt, whether or not the date for redemption has arrived,

(b) the mortgagee, it shall be applied in accordance with section 107as if it comprised the proceeds of a sale.

114.— (1) Subject to subsection (2), a mortgagor or mortgagee in possession (or after the mortgagee has appointed a receiver and so long as the receiver acts, the receiver) may accept a surrender of a lease previously granted under section 112 or as authorised by the terms of the mortgage, whether the surrender relates to the whole or part only of the land leased.

[CA 1911, s. 3]

(2) Subsection (1) applies only where the surrender of the previous lease is for the purpose of granting a new lease under section 112 or as authorised by the terms of the mortgage.

(3) On such a surrender—

(a) the term of the new lease shall not be less than the unexpired term which would have existed under the surrendered lease if it not been surrendered,

(b) the rent reserved by the new lease shall not be less than the rent which would have been payable under the surrendered lease if it had not been surrendered,

(c) where part only of the land has been surrendered—

(i) the rent reserved by the new lease shall not be less than is required to make the aggregate rents payable under the remaining lease and new lease not less than the rent payable under the surrendered lease if no partial surrender had been accepted, and

(ii) any other modifications of the original lease shall comply with section 113.

(4) A purported acceptance of a surrender which fails to comply with subsection (3) is void.

(5) Where a surrender involves payment of a premium or consideration other than the agreement to accept surrender, the surrender is void unless, in the case of a surrender—

(a) to the mortgagor, the consent of incumbrancers, or

(b) to a second or subsequent mortgagee, the consent of any prior incumbrancer,

is obtained.