PROPERTY LAW ACT 1974 - SECT 83 Powers incident to estate or interest of mortgagee

PROPERTY LAW ACT 1974 - SECT 83

83 Powers incident to estate or interest of mortgagee

(1) A mortgagee, where the mortgage is made by instrument, shall, because of this Act, have the following powers, to the like extent as if they had in terms been conferred by and were contained in the instrument of mortgage, but not further, namely—

(a) a power to sell, or to concur with any other person in selling, the mortgaged property, or any part of the mortgaged property, either subject to prior charges or not, and either together or in lots, in subdivision or otherwise, by public auction or by private contract, and for a sum payable either in 1 sum or by instalments, subject to such conditions respecting title, or evidence of title, or other matters as the mortgagee thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to resell, without being answerable for any loss occasioned by the exercise of the power, with power to make such roads, streets and passages and grant such easements of right of way or drainage over the same as the circumstances may require and the mortgagee thinks fit;

(b) a power, at any time after the date of the instrument of mortgage, to insure and keep insured against loss or damage by fire and by storm and tempest any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the property which or an estate or interest in which is mortgaged, and the premiums paid for any such insurance shall be a charge on the mortgaged property or estate or interest, in addition to the mortgage money, and with the same priority, and with interest at the same rate, as the mortgage money;

(c) a power to appoint a receiver of the income of the mortgaged property, or any part of the mortgaged property or, if the mortgaged property consists of an interest in income, or of a rent charge or an annual or other periodical sum, a receiver of that property or any part of that property;

(d) a power, while the mortgagee is in possession, to cut and sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding 12 months from the making of the contract;

(e) a power to sell any easement, right or privilege of any kind over or in relation to the mortgaged property.

(2) The power of sale includes the following powers as incident to the sale, namely—

(a) a power to impose or reserve or make binding, as far as the law permits, by covenant, condition, or otherwise, on the unsold part of the mortgaged property or any part of it, or on the purchaser and any property sold, any restriction or reservation with respect to building on or other user of land, or with respect to mines and minerals, or for the purpose of the more beneficial working of the land, or with respect to any other thing;

(b) a power to sell the mortgaged property, or any part of it, or all or any mines and minerals apart from the surface—

(i) with or without a grant or reservation of rights of way, rights of water, easements, rights, and privileges for or connected with building or other purposes in relation to the property remaining in mortgage or any part of it, or to any property sold; and

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

(iii) with or without covenants by the purchaser to expend money on the land sold.

(3) The provisions of this Act relating to the powers mentioned in subsections (1) and (2) , comprised either in this section, or in any other section regulating the exercise of those powers, may be varied or extended by the instrument of mortgage.

(4) This section applies only—

(a) to an instrument of mortgage of land executed whether before or after the commencement of this Act; and

(b) if and so far as a contrary intention is not expressed in the instrument of mortgage and has effect subject to the terms of the instrument and to the provisions expressed in it.

(5) The provisions of this Act relating to the powers mentioned in subsections (1) and (2) comprised in this section, or in any other section regulating the exercise of those powers, apply to mortgages of land under the Land Act or the Mineral Resources Act, but subject to and to the extent only that the provisions of this Act are consistent with those provisions.