South Australian Consolidated Acts South Australian Consolidated Acts (1) In a conveyance
there shall, in the several cases in this section mentioned, be deemed to be
included, and there shall in those several cases, by virtue of this Act, be
implied, a covenant to the effect in this section stated, by the person or by
each person who conveys, as far as regards the subject-matter or share of
subject-matter expressed to be conveyed by him, with the person, if one, to
whom the conveyance is made, or with the persons jointly, 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, that is to
say:
(a) in a
conveyance for valuable consideration, other than a mortgage, a covenant by a
person who conveys and is expressed to convey as beneficial owner in the terms
set out in clause 1 of Schedule 2 to this Act;
(b) in a
conveyance of leasehold property for valuable consideration, other than a
mortgage, a further covenant by a person who conveys and is expressed to
convey as beneficial owner in the terms set out in clause 2 of Schedule 2
to this Act;
(c) in a
conveyance by way of mortgage a covenant by a person who conveys and is
expressed to convey as beneficial owner in the terms set out in clause 3
of Schedule 2 to this Act;
(d) in a
conveyance by way of mortgage of leasehold property, a further covenant by a
person who conveys and is expressed to convey as beneficial owner in the terms
set out in clause 4 of Schedule 2 to this Act;
(e) in a
conveyance by way of settlement, a covenant by a person who conveys and is
expressed to convey as settlor in the terms set out in clause 5 of
Schedule 2 to this Act;
(f) in
any conveyance, a covenant by every person who conveys and is expressed to
convey as trustee or mortgagee, or as personal representative of a deceased
person, or as administrator, committee or other person empowered to act on
behalf of a mentally incapacitated person, or under an order of the court, in
the terms set out in clause 6 of Schedule 2 to this Act, which covenant
shall be deemed to extend to every such person's own acts only, and may be
implied in an assent by a personal representative in like manner as in a
conveyance by deed.
(2) Where in a
conveyance it is expressed that by direction of a person expressed to direct
as beneficial owner another person conveys, then, for the purposes of this
section, the person giving the direction, whether he conveys and is expressed
to convey as beneficial owner or not, shall be deemed to convey and to be
expressed to convey as beneficial owner the subject-matter so conveyed by his
direction; and a covenant on his part shall be implied accordingly.
(3) Where a wife
conveys and is expressed to convey as beneficial owner, and the husband also
conveys and is expressed to convey as beneficial owner, then, for the purposes
of this section, the wife shall be deemed to convey and to be expressed to
convey by direction of the husband, as beneficial owner; and, in addition to
the covenant implied on the part of the wife, there shall also be implied,
first, a covenant on the part of the husband as the person giving that
direction, and secondly, a covenant on the part of the husband in the same
terms as the covenant implied on the part of the wife.
(4) Where in a
conveyance a person conveying is not expressed to convey as beneficial owner,
or as settlor, or as trustee, or as mortgagee, or as personal representative
of a deceased person, or as administrator, committee or other person empowered
to act on behalf of a mentally incapacitated person, or under an order of the
court, or by direction of a person as beneficial owner, no covenant on the
part of the person conveying shall be, by virtue of this section, implied in
the conveyance.
(5) In this section a
conveyance does not include a demise by way of lease
at a rent, but does include a charge, and "convey" has a corresponding
meaning.
(6) The benefit of a
covenant implied as aforesaid shall be annexed and incident to, and shall go
with, the estate or interest of the implied covenantee, and shall be capable
of being enforced by every person in whom that estate or interest is, for the
whole or any part thereof, from time to time vested.
(7) A covenant implied
as aforesaid may be varied or extended by a deed or an assent, and, as so
varied or extended, shall, as far as may be, operate in the like manner, and
with all the like incidents, effects, and consequences, as if such variations
or extensions were directed in this section to be implied.