Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In a conveyance
there shall, in the several cases mentioned in this section, by virtue of this
Act, be implied, a covenant to the effect stated in this section 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
namely —
(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 Part I of the Third Schedule;
(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 Part II of the Third
Schedule;
(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 Part III of
the Third Schedule;
(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 Part IV of the Third Schedule;
(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 Part V of the Third
Schedule;
(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 of the estate of a represented person or under an
order of the Court, in the terms set out in Part VI of the Third Schedule,
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) In every
conveyance subject to an encumbrance, there shall be implied a covenant by the
person to whom the property is conveyed with the person making the conveyance,
to pay the moneys or perform the obligations secured by the encumbrance, and
to perform and observe the covenants and provisions of the encumbrance and to
indemnify and keep indemnified the person making the conveyance in respect of
all such moneys, obligations, covenants and provisions.
(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 of the estate of a represented 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 is, 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.
(6) The benefit of a
covenant implied by virtue of this section is annexed and incident to, and
goes with, the estate or interest of the implied covenantee, and is 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
by virtue of this section may be varied or extended by a deed or an assent,
and, as so varied or extended, operates, as far as may be, 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.
(8) This section
applies to conveyances made after the coming into operation of this Act.
[Section 45 amended by No. 24 of 1990
s. 123.]