LAW OF PROPERTY ACT 1936 - SECT 55A
LAW OF PROPERTY ACT 1936 - SECT 55A
55A—Enforcement of rights against mortgagor
(1) A right of sale or
foreclosure in respect of mortgaged land, a right to enter into possession of
mortgaged land or a right to appoint a receiver in respect of mortgaged land
shall not be enforceable by the mortgagee under a mortgage to which this
section applies against the mortgagor by action or otherwise unless—
(a) the
mortgagee has served upon the mortgagor a notice in writing—
(i)
alleging a breach of a covenant or condition of the
mortgage by the mortgagor; and
(ii)
if the breach is capable of remedy, requiring the
mortgagor within one month after service of the notice, or such longer period
as may be stipulated in the notice, to remedy the breach; and
(iii)
if the mortgagee seeks compensation for the breach,
requiring the mortgagor within one month after service of the notice or such
longer period as may be stipulated in the notice, to pay to the mortgagee the
amount of the cost and expenses, stipulated in the notice, that the mortgagee
has reasonably incurred in consequence of the breach; and
(b)
where requirements are made of the mortgagor in the notice, he has failed to
comply with those requirements.
(2) Where a mortgage
to which this section applies contains a provision by virtue of which a
liability to repay moneys under the mortgage falls due in the event of a
breach of a covenant or condition of the mortgage at an earlier date than if
there were no such breach, that provision shall be inoperative unless a notice
has been served upon the mortgagor in conformity with the provisions of
subsection (1) of this section and where requirements are made of the
mortgagor in the notice, he has failed to comply with those requirements.
(2a) Upon the
application of a mortgagee, a court may dispense, upon such terms and
conditions as it thinks fit, with the requirement of notice under this
section.
(2b) Where such a
dispensation has been granted, the provisions of subsection (1) and
subsection (2) of this section shall not apply in respect of the
mortgage.
(3) In any proceedings
brought by a mortgagee for the recovery of a mortgage debt or for the
enforcement of a mortgage, or in proceedings instituted by a mortgagor within
twenty-one days after service of a notice under this section, a court may,
upon such fair and equitable terms as it may determine, grant relief to a
mortgagor against the enforcement of rights of a kind referred to in
subsection (1) of this section, and may reinstate the position of the
mortgagor in all respects as if no breach of a covenant or condition of the
mortgage had occurred.
(5) This section
applies to a mortgage of land (whether or not the land has been brought under
the provisions of the Real Property Act where—
(a) the
mortgagor is a natural person; and
(b) the
land is appropriated for domestic or agricultural use.
(6) For the purposes
of this section—
(a) land
shall be deemed to be appropriated for domestic or agricultural use unless the
mortgagor has made a statutory declaration that during the currency of the
mortgage—
(i)
no part of the land is to be used as a place of dwelling
for the mortgagor's own personal occupation; and
(ii)
in the case of land exceeding two hectares in area, no
part of the land is to be used by the mortgagor for the
business of primary production; and
(b)
where such a declaration has been made it shall be conclusively presumed that
the land is not appropriated for domestic or agricultural use.
(7) In this
section—
"business of primary production" means the business of agriculture, pasturage,
horticulture, viticulture, apiculture, poultry farming, dairy farming,
forestry, or any other business consisting of the cultivation of the soil, the
gathering in of crops, or the rearing of livestock.
(8) This section shall
not apply to any mortgage granted before the commencement of the
Law of Property Act Amendment Act (No. 2) 1972 .