Mortgagee Powers
Registration of Title Act, 1964
No. 16/1964:
REGISTRATION OF TITLE ACT, 1964
Charges
Creation and effect of charge on registered land.
62.—(1) A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such.
(2) There shall be executed on the creation of a charge, otherwise than by will, an instrument of charge in the prescribed form (or an instrument in such other form as may appear to the Registrar to be sufficient to charge the land, provided that such instrument shall expressly charge or reserve out of the land the payment of the money secured) but, until the owner of the charge is registered as such, the instrument shall not confer on the owner of the charge any interest in the land.
(3) A mortgage by way of conveyance with a proviso for redemption or by way of demise or sub-demise shall not of itself operate to charge registered land or be registrable as a charge on registered land.
(4) Any power, howsoever conferred, to borrow or lend money on the security of a mortgage shall be construed as including power to do so on the security of a registered charge.
(5) On registration of the owner of the charge the Registrar shall deliver to him a certificate of charge in the prescribed form.
(6) On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest, the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts, and the registered owner of the charge shall, for the purpose of enforcing his charge, have all the rights and powers of a mortgagee under a mortgage by deed, including the power to sell the estate or interest which is subject to the charge.
(7) When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.
(8) On registration of the owner of a charge by way of annuity, the owner of the charge shall have such remedies for recovering and compelling payment of the annuity as are described in section 44 of the Conveyancing Act, 1881, as affected by section 6 of the Conveyancing Act, 1911 .
(9) If the registered owner of a charge on land sells the land in pursuance of the powers referred to in subsection (6), his transferee shall be registered as owner of the land, and thereupon the registration shall have the same effect as registration on a transfer for valuable consideration by a registered owner.
(10) When a transferee from the registered owner of the charge is registered, under subsection (9), as owner of the land, the charge and all estates, interests, burdens and entries puisne to the charge shall be discharged.
(11) When it is expressed in the instrument of charge that any person covenants for repayment of the principal sum charged, there shall be implied a covenant by that person with the registered owner for the time being of the charge to pay the sum charged and interest (if any) thereon at the time and rate specified in the instrument of charge, and also a covenant, if the sum or any part thereof is unpaid at the time so specified, to pay interest half-yearly at the specified rate on so much of the principal sum as for the time being remains unpaid.
Saving for mortgages registered as charges.
63.—(1) A charge registered prior to the commencement of this Act shall not be void or be deemed ever to have been void—
(a) by reason only that it was expressed to have been created by way of mortgage, or
(b) by reason only that the consent of the Land Commission or the Commissioners of Public Works or such other consent as may be provided for by any enactment was not obtained to any demise or sub-demise expressed to have been created by any such mortgage;
and the registration of the charge as a burden on registered land shall not be invalid or be deemed ever to have been invalid for either of these reasons.
(2) In this section “mortgage” includes both a mortgage by demise or sub-demise and a mortgage by conveyance or assignment with a proviso for redemption.
Burdens which may be registered as affecting registered land.
69.—(1) There may be registered as affecting registered land any of the following burdens, namely—
(a) any incumbrance on the land existing at the time of the first registration of the land;
(b) any charge on the land duly created after the first registration of the land;
(c) any rentcharge (not being a rentcharge to which, though not registered, the land is subject under section 72) or fee farm or other perpetual rent issuing out of the land;
(d) any power to charge land with payment of money, whether created or arising before or after the first registration of the land;
(e) any trust for securing money created or arising after the first registration of the land;
(f) any lien on the land for unpaid purchase money;
(g) any lease where the term granted is for a life or lives, or is determinable on a life or lives, or exceeds twenty-one years, or where the term is for any less estate or interest but the occupation is not in accordance with the lease;
(h) any judgment or order of a court, whether existing before or after the first registration of the land;
(i) any judgment mortgage, recognizance, State bond, inquisition or lis pendens, whether existing before or after the first registration of the land;
(j) any easement, profit à prendre or mining right created by express grant or reservation after the first registration of the land;
(k) any covenant or condition relating to the use or enjoyment of the land or of any specified portion thereof;
(l) any estate in dower;
(m) any burden to which section 54 of the Forestry Act, 1946 , relates;
(n) any right of the Land Commission or a local authority to lay pipe-lines for whatsoever purpose and any right ancillary thereto;
(o) a power to appoint an estate or interest in the property exercisable within a period not exceeding a life or lives in being and twenty-one years thereafter;
(p) a power of distress or entry;
(q) a right in the nature of a lien for money’s worth in or over the property for a limited period not exceeding life, such as a right of support or a right of residence (whether an exclusive right of residence or not);
(r) a burden created by statute or under a statutory power that is not one of the burdens to which, though not registered, registered land is subject under section 72;
(s) any such other matter as may be prescribed.
(2) A burden may be registered under this section on the application of the registered owner of the land or of any person entitled to or interested in the burden but, if the application is made without the concurrence of the registered owner of the land or such other person as may be prescribed, the burden shall not be registered except in pursuance of an order of the court.
(3) Any covenant or condition registered under this section may be modified or discharged by order of the court on proof to the satisfaction of the court that the covenant or condition does not run with the land, or is not capable of being enforced against the owner of the land, or that the modification or discharge thereof will be beneficial to the persons principally interested in the enforcement thereof, and may, with the consent of all persons interested in the enforcement thereof, be modified or discharged by the Registrar without any such order.
(4) The Registrar may, on the prescribed evidence and subject to the prescribed conditions, modify or cancel any entry under this section of a burden not being such a covenant or condition as aforesaid.