Victorian Consolidated Legislation

Property Law Act 1958 - SECT 77

Implied covenants in conveyances subject to rents

77. Implied covenants in conveyances subject to rents



(1) In addition to the covenants implied under the last preceding section,
there shall in the several cases in this section mentioned, be deemed to be
included and implied, a covenant to the effect in this section stated, by and
with such persons as are hereinafter mentioned, that is to say-

   (a)  in a conveyance for valuable consideration, other than a mortgage, of
        the entirety of the land affected by a rentcharge, a covenant by the
        grantee or joint and several covenants by the grantees, if more than
        one, with the conveying parties and with each of them, if more than
        one, in the terms set out in Part VII of the Fourth Schedule to this
        Act. Where a rentcharge has been apportioned in respect of any land,
        with the consent of the owner of the rentcharge, the covenants in this
        paragraph shall be implied in the conveyance of that land in like
        manner as if the apportioned rentcharge were the rentcharge referred
        to, and the document creating the rentcharge related solely to that
        land;

   (b)  in a conveyance for valuable consideration, other than a mortgage, of
        part of land affected by a rentcharge, subject to a part of that
        rentcharge which has been or is by that conveyance apportioned (but in
        either case without the consent of the owner of the rentcharge) in
        respect of the land conveyed-

   (i)  a covenant by the grantee of the land or joint and several covenants
        by the grantees, if more than one, with the conveying parties and with
        each of them, if more than one, in the terms set out in paragraph (i)
        of Part VIII of the Fourth Schedule to this Act;

   (ii) a covenant by a person who conveys or is expressed to convey as
        beneficial owner, or joint and several covenants by the persons who so
        convey or are expressed to so convey, if at the date of the conveyance
        any part of the land affected by such rentcharge is retained, with the
        grantees of the land and with each of them (if more than one) in the
        terms set out in paragraph (ii) of Part VIII of the Fourth Schedule to
        this Act;

   (c)  in a conveyance for valuable consideration, other than a mortgage, of
        the entirety of the land comprised in a lease, for the residue of the
        term or interest created by the lease, a covenant by the assignee or
        joint and several covenants by the assignees (if more than one) with
        the conveying parties and with each of them (if more than one) in the
        terms set out in Part IX of the Fourth Schedule to this Act. Where a
        rent has been apportioned in respect of any land, with the consent of
        the lessor, the covenants in this paragraph shall be implied in the
        conveyance of that land in like manner as if the apportioned rent were
        the original rent reserved, and the lease related solely to that land;

   (d)  in a conveyance for valuable consideration, other than a mortgage, of
        part of the land comprised in a lease, for the residue of the term or
        interest created by the lease, subject to a part of the rent which has
        been or is by the conveyance apportioned (but in either case without
        the consent of the lessor) in respect of the land conveyed-

   (i)  a covenant by the assignee of the land, or joint and several covenants
        by the assignees, if more than one, with the conveying parties and
        with each of them, if more than one, in the terms set out in paragraph
        (i) of Part X of the Fourth Schedule to this Act;

   (ii) a covenant by a person who conveys or is expressed to convey as
        beneficial owner, or joint and several covenants by the persons who so
        convey or are expressed to so convey, if at the date of the conveyance
        any part of the land comprised in the lease is retained, with the
        assignees of the land and with each of them (if more than one) in the
        terms set out in paragraph (ii) of Part X of the Fourth Schedule to
        this Act.

(2) Where in a conveyance for valuable consideration, other than a mortgage,
part of land affected by a rentcharge, or part of land comprised in a lease
is, without the consent of the owner of the rentcharge or of the lessor, as
the case may be, expressed to be conveyed-

        (i)    subject to or charged with the entire rent-

then paragraph (b)(i) or (d)(i) of the last subsection, as the case may
require, shall have effect as if the entire rent were the apportioned rent; or

        (ii)   discharged or exonerated from the entire rent-

then paragraph (b)(ii) or (d)(ii) of the last subsection, as the case may
require, shall have effect as if the entire rent were the balance of the rent,
and the words "other than the covenant to pay the entire rent" had been
omitted.

(3) In this section conveyance shall not include a demise by way of lease or
rent.

(4) Any covenant which would be implied under this section by reason of a
person conveying or being expressed to convey as beneficial owner may, by
express reference to this section, be implied, with or without variation, in a
conveyance, whether or not for valuable consideration, by a person who conveys
or is expressed to convey as settlor, or as trustee, or as mortgagee, or as
personal representative of a deceased person, or as committee of a lunatic, or
under an order of the Court.

(5) 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.

(6) A covenant implied as aforesaid may be varied or extended by deed, 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.

(7) In particular any covenant implied under this section may be extended by
providing that-

   (a)  the land conveyed; or

   (b)  the part of the land affected by the rentcharge which remains vested
        in the covenantor; or

   (c)  the part of the land demised which remains vested in the covenantor-

shall, as the case may require, stand charged with the payment of all money
which may become payable under the implied covenant.

(8) This section shall apply only to conveyances made
after the commencement of this Act.