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RSNL1990 CHAPTER C-34

CONVEYANCING ACT

Amended:

1992 c48 s7; 1994 c28 s3; 1998 cP-7.1 s77; 2004 cL-3.1 s22; 2013 c16 s25

CHAPTER C-34

AN ACT RESPECTING CONVEYANCE BY DEEDS

Analysis


       
1.   Short title

       
2.   Definitions

     
2.1   Labrador Inuit rights

       
3.   General words in conveyances

       
4.   Covenants for title to be implied

       
5.   Powers incident to estate or interest of mortgagee

       
6.   Power of sale

       
7.   Notice of sale

       
8.   Property shall be appraised

       
9.   Sale of property

     
10.   Mortgagee to account

     
11.   Application to court

     
12.   Mortgagor not liable for deficiency

     
13.   Mortgage deed overridden

     
14.   Conveyance receipt, etc., on sale

     
15.   Mortgagee's receipts, discharges, etc.

     
16.   Amount and application of insurance money

     
17.   Sale of mortgaged property in action for foreclosure

     
18.   Registration of release of mortgage

     
19.   Discharge of mortgage

     
20.   Mortgagee shall transfer property

     
21.   Right of mortgagor to inspect title deeds

     
22.   Short form of covenants in leases

     
23.   Application of sections

     
24.   Notice to landlord

     
25.   Action to recover possession

     
26.   Tender of arrears

     
27.   Final judgment

     
28.   Stay of proceedings

     
29.   Set-offs of rents

     
30.   Effect of relief

     
31.   Possession

     
32.   Execution under power of attorney

     
33.   Payment by attorney under power

     
34.   Effect of power of attorney for value

     
35.   Effect of power of attorney for value or not made irrevocable for fixed time

     
36.   Receipt in deed sufficient

     
37.   Covenants to bind executors, etc.

     
38.   Covenants to extend to executors, etc.

     
39.   Provision for all the estate, etc.

     
40.   Notices

     
41.   Definition of non-resident mortgagee

     
42.   Duty on non-resident mortgagee to have attorney

     
43.   Registration of power of attorney

     
44.   Court may execute release

     
45.   Payment out of court

     
46.   Claim for partition

     
47.   Procedure

     
48.   Where titled denied

     
49.   Partition order

     
50.   Final judgment

     
51.   Joining of guardian

     
52.   Registration of judgment

     
53.   Right to order sale

     
54.   Duty to order sale

     
55.   Purchase of share

     
56.   Ancillary direction

     
57.   Party may bid

     
58.   Value of rent charge


Short title

        1. This Act may be cited as the Conveyancing Act.

RSN1970 c63 s1

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Definitions

        2. In this Act

             (a)  "convey" has a meaning corresponding with that of conveyance;

             (b)  "conveyance" includes assignment, appointment, lease, settlement and other assurance and covenant to surrender made by deed, on a sale, mortgage, demise or settlement of property, or on another dealing by deed with or for property;

             (c)  "court" means the Trial Division;

             (d)  "encumbrance" includes a mortgage and a trust for securing money and a lien and a charge of a portion, annuity or other capital or annual sum;

             (e)  "encumbrancer" has a meaning corresponding with that of encumbrance, and includes a person entitled to the benefit of an encumbrance, or to require payment or discharge of an encumbrance;

             (f)  "judge" means a judge of the court;

             (g)  "mortgage" includes a charge on property for securing money or money's worth;

             (h)  "mortgage money" means money or money's worth secured by a mortgage;

              (i)  "mortgagee" includes a person deriving title under the original mortgagee;

              (j)  "mortgagee in possession" is a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property;

             (k)  "mortgagor" includes a person deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his or her estate, interest or right in the mortgaged property;

              (l)  "property" means real property and includes chattels real but does not include personal property as defined in the Personal Property Security Act ;

           (m)  "purchase" has a meaning corresponding with that of purchaser;

             (n)  "purchaser" includes a lessee or mortgagee, or an intending purchaser, lessee or mortgagee, or other person who, for valuable consideration, takes or deals for property;

             (o)  "securities" include stocks, funds and shares; and

             (p)  "writing" includes print.

RSN1970 c63 s2; 1986 c42 Schs A&C; 1998 cP-7.1 s77

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Labrador Inuit rights

      2.1 This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act.

2004 cL-3.1 s22

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General words in conveyances

        3. (1) A conveyance of land shall be considered to include, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages appertaining or reputed to appertain to the land, or a part of the land, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of, or appurtenant to, the land or a part of the land.

             (2)  A conveyance of land having houses or other buildings on it shall be considered to include houses, or other buildings, all out-houses, erections, fixtures, cellars, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights and advantages appertaining, or reputed to appertain, to the land, houses or other buildings conveyed or either of them, or a part of them.

             (3)  This section applies only where a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions contained in the conveyance.

             (4)  This section shall not be construed as giving to a person a better title to property, a right or thing referred to in this section than the title which the conveyance gives to him or her to the land expressed to be conveyed, or as conveying to the person property, a right or thing referred to in this section further or otherwise than as the property, right or thing could have been conveyed to him or her by the conveying parties.

RSN1970 c63 s3

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Covenants for title to be implied

        4. (1) The following covenant shall be considered to be included in a conveyance for valuable consideration, other than a mortgage:

             (a)  the person who conveys has full power to convey as beneficial owner the subject matter expressed to be conveyed;

             (b)  the subject matter shall remain to and be quietly entered upon, received and held, occupied, enjoyed and taken by the person to whom the conveyance is made, and a person deriving title under him or her;

             (c)  the subject matter is freed and discharged from, or otherwise by the person who conveys sufficiently indemnified against, all those estates, encumbrances, claims and demands, other than those subject to which the conveyance is expressly made, that either before or after the date of the conveyance have been or shall be made, occasioned or suffered by that person;

             (d)  the person who conveys will, after the date of the conveyance, on the request and at the cost of a person to whom the conveyance is made, or of a person deriving title under him or her, execute and do the lawful assurances and things for further or more perfectly assuring the subject matter of the conveyance to the person to whom the conveyance is made, and to those deriving title under him or her that may be reasonably required.

             (2)  The following covenant shall be considered to be included in a conveyance of leasehold property for valuable consideration, other than a mortgage:

the lease or grant creating the term or estate for which the land is conveyed is, at the time of conveyance, a valid lease or grant of the property conveyed, and is in full force, unforfeited, unsurrendered, and has not become void or voidable, and all the rents reserved by, and all the covenants, conditions, and agreements contained in the lease or grant, and on the part of the lessee or grantee, and the persons deriving title under him or her to be paid, observed and performed, have been paid, observed and performed, up to the time of conveyance.

             (3)  The following covenant shall be considered to be included in a conveyance by way of mortgage:

             (a)  the person who conveys has full power to convey the subject matter expressed to be conveyed;

             (b)  where default is made in payment of the money or interest on the money intended to be secured by the conveyance, or a part of that money or interest, contrary to a provision in the conveyance, it is lawful for the person to whom the conveyance is made and the persons deriving title under him or her, to enter into and upon, or receive, and quietly hold, occupy and enjoy, or take and have, the subject matter or part of the subject matter expressed to be conveyed, without lawful interruption or disturbance by the person who conveys;

             (c)  the subject matter is freed and discharged from, or otherwise by the person who conveys sufficiently indemnified against, all estates, encumbrances, claims and demands, other than those subject to which the conveyance is expressly made;

             (d)  the person who conveys will, on the request of a person to whom the conveyance is made, or of a person deriving title under him or her, but as long as a right of redemption exists under the conveyance, at the cost of the person conveying or of those deriving title under him or her, and afterwards at the cost of the person making the request, execute and do the lawful assurances and things for further or more perfectly assuring the subject matter of the conveyance to the person to whom the conveyance is made and to those deriving title under him or her that may be reasonably required.

             (4)  The following covenant shall be considered to be included in a conveyance by way of mortgage of leasehold property:

             (a)  the lease or grant creating the term or estate for which the land is held is at the time of conveyance a valid lease or grant of the land conveyed, and is in full force, unforfeited and unsurrendered, and has not become void or voidable, and the rents reserved by, and the covenants, conditions and agreements contained in the lease or grant and on the part of the lessee or grantee and the persons deriving title under him or her, to be paid, observed and performed, have been paid, observed and performed, up to the time of conveyance;

             (b)  the person conveying or the persons deriving title under him or her will, so long as any money remains on the security of the conveyance, pay, observe and perform the rents reserved by, and the covenants, conditions and agreements contained in the lease or grant and on the part of the lessee or grantee and the persons deriving title under him or her, to be paid, observed and performed, and will keep the person to whom the conveyance is made, and those deriving title under him or her, indemnified against all actions, proceedings, costs, charges, damages, claims and demands to be incurred or sustained by him or her because of the non-payment of the rent, or the non-observance or non-performance of the covenants, conditions, and agreements.

             (5)  The following covenant shall be considered to be included in a conveyance by way of settlement:

the person conveying, and a person deriving title under him or her by deed or act or operation of law in his or her lifetime after that conveyance, or by testamentary disposition or devolution in law on his or her death, will, after the date of that conveyance, at the request and cost of a person deriving title under that conveyance, execute and do the lawful assurances and things for further or more perfectly assuring the subject matter of the conveyance to the persons to whom the conveyance is made and those deriving title under them that may be reasonably required.

             (6)  The following covenant shall be considered to be included in a conveyance by a person who conveys as trustee or mortgagee, or as personal representative of a deceased person, or as guardian of a mentally incompetent person, or under an order of the court:

the person conveying has not executed or done, or knowingly suffered, or been party to a deed or thing by which the subject matter of the conveyance, or a part of the subject matter, is or may be impeached, charged, affected, or incumbered in title, estate or otherwise, or where the person who conveys is prevented from conveying the subject matter of the conveyance, or a part of the subject matter, in the manner in which it is expressed to be conveyed.

             (7)  Where, in a conveyance, it is expressed that by direction of a person expressed to direct as beneficial owner another person conveys, then the person giving the direction, whether he or she conveys and is expressed to convey as beneficial owner or not, shall be considered to convey and to be expressed to convey as beneficial owner the subject matter so conveyed by his or her direction; and a covenant on his or her part shall be implied accordingly.

             (8)  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 guardian of a mentally incompetent person, or under order of the court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be implied in the conveyance.

             (9)  The benefit of a covenant implied 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 persons in whom that estate or interest is, for the whole or a part of it, vested.

          (10)  A covenant implied may be varied or extended by deed, and as so varied or extended, shall operate in the same manner, and with all the same incidents, effects and consequences as if the variations or extensions were directed in this section to be implied.

RSN1970 c63 s4; 1994 c28 s3

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Powers incident to estate or interest of mortgagee

        5. (1) A mortgagee, where the mortgage is made by deed, shall have the following powers to the same extent as if they had been conferred by the mortgage deed:

             (a)  a power, where the mortgage money, whether principal or interest, has become due, to sell or to concur with another person in selling the mortgaged property, or a part of the mortgaged property, either subject to prior charges or not, and either together or in lots by public auction or by private contract, subject to the conditions respecting title, or evidence of title or other matter, that the mortgagee thinks appropriate, with power to vary a contract for sale, and to buy in at an auction, or to rescind a contract for sale, and to resell without being answerable for a loss occasioned by the resale; and

             (b)  a power, after the date of the mortgage deed, to insure and keep insured against loss or damage by fire a building or effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property; and the premiums paid for that insurance shall be a charge on the mortgaged property in addition to the mortgage money and with the same priority, and with interest at the same rate as the mortgage money.

             (2)  The provisions of this Act relating to the powers referred to in subsection (1), regulating the exercise of those powers, may be varied or extended by the mortgage deed, and as so varied or extended shall operate in the same manner, and with the same incidents, effects and consequences as if the variations or extensions were contained in this Act.

             (3)  This section applies only where a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed.

RSN1970 c63 s5

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Power of sale

        6. A mortgagee shall not exercise the power of sale conferred by this Act unless written notice is first given to the mortgagor and another registered encumbrancer or guarantor

             (a)  requiring payment of the mortgage money and there has been a default in payment for 30 days after the giving of the notice;

             (b)  requiring that interest under the mortgage that is in arrears and unpaid be paid and there has been a default in payment for 30 days after the giving of the notice; or

             (c)  requiring that a breach of a provision contained in the mortgage deed, or in this Act, and on the part of the mortgagor or of a person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for payment of the mortgage money or interest on the mortgage money be remedied and that breach remains unremedied for not less than 30 days after the giving of the notice.

1988 c37 s1

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Notice of sale

        7. (1) A notice of sale of a mortgaged property by public auction or public tender shall not be published until the period referred to in section 6 has expired.

             (2)  A notice of sale of a mortgaged property by public auction or public tender shall be placed in a newspaper in general circulation in the area where the mortgaged property is located at least once a week for 2 consecutive weeks before the date on which the sale is to take place.

1988 c37 s1

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Property shall be appraised

        8. (1) Before the date on which a sale of a mortgaged property is to take place the mortgagee shall obtain a written appraisal of the mortgaged property by a qualified appraiser.

             (2)  Where there is no qualified appraiser available in the area where the mortgaged property is located, the mortgagee shall obtain a statement of the fair market value of the property from a licensed real estate agent familiar with the property values in the area in which the property is located.

1988 c37 s1

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Sale of property

        9. (1) A mortgaged property shall not be sold at a sale by public auction or public tender by a mortgagee for less than 75% of the appraised value of the property unless the mortgagee first obtains approval for the sale from a judge upon an application after notice has been given to interested parties.

             (2)  A mortgaged property shall not be sold at a sale by private contract by a mortgagee unless there are no offers to purchase the property at the time of the public auction or public tender or unless the offers are unreasonably low.

             (3)  A mortgaged property shall not be sold at a sale by private contract by a mortgagee for less than 75% of the appraised value of the property unless the mortgagee first obtains approval for the sale from a judge upon an application after notice has been given to interested parties.

1988 c37 s1

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Mortgagee to account

      10. A mortgagee shall prepare an accounting of the sale of a mortgaged property, whether by way of public auction or public tender or at a sale by private contract, including a copy of the appraisal of the property and shall send a copy to the mortgagor and another registered encumbrancer or guarantor within 30 days from the date of the completion of the sale.

1988 c37 s1

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Application to court

      11. A mortgagor and another registered encumbrancer or guarantor who is dissatisfied with an accounting given by a mortgagee under section 10 may apply to a judge for whatever relief that the judge may think appropriate in the circumstances to grant.

1988 c37 s1

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Mortgagor not liable for deficiency

      12. A mortgagor or another registered encumbrancer or guarantor shall not be liable for a deficiency resulting from the sale of the mortgaged property where the mortgagee fails to comply with a requirement of sections 6 to 11.

1988 c37 s1

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Mortgage deed overridden

      13. The provisions contained in sections 6 to 12 apply to a sale of mortgaged property, notwithstanding a provision to the contrary contained in a mortgage deed.

1988 c37 s1

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Conveyance receipt, etc., on sale

      14. (1) A mortgagee exercising the power of sale conferred by this Act shall have power by deed to convey the property sold for the estate and interest in the estate that is the subject of the mortgage, freed from all estates, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage.

             (2)  Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that notice was not given, or that the power was otherwise or irregularly exercised; but a person adversely affected by an unauthorized or improper or irregular exercise of the power shall have his or her remedy in damages against the person exercising the power.

             (3)  The money that is received by the mortgagee arising from the sale, after the discharge of prior encumbrances to which the sale is not made subject, shall be held by him or her in trust to be applied

             (a)  1st, in payment of all costs, charges and expenses properly incurred as incident to the sale or an attempted sale, or otherwise;

             (b)  secondly, in discharge of the mortgage money, interest and costs, and other money due under the mortgage; and

             (c)  the residue of the money received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale of the mortgaged property.

             (4)  The power of sale conferred by this Act may be exercised by a person entitled to receive and give a discharge for the mortgage money.

             (5)  The power of sale conferred by this Act shall not affect the right of foreclosure.

             (6)  The mortgagee, his or her executors, administrators or assigns shall not be answerable for an involuntary loss happening in or about the exercise or execution of the power of sale conferred by this Act or of a trust connected with the power of sale.

             (7)  Where the power of sale conferred by this Act has become exercisable, the person entitled to exercise it may demand and recover from a person, other than a person having in the mortgaged property an estate, interest or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title to the property, that a purchaser under the power of sale would be entitled to demand and recover from him or her.

RSN1970 c63 s7

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Mortgagee's receipts, discharges, etc.

      15. (1) The written receipt of a mortgagee shall be a sufficient discharge for money arising under the power of sale conferred by this Act, or for money or securities comprised in the mortgage, or arising under the mortgage; and a person paying or transferring the mortgage to the mortgagee shall not be concerned to inquire whether money remains due under the mortgage.

             (2)  Money received by a mortgagee under the mortgage, or from the proceeds of securities comprised in the mortgage, shall be applied in the same manner as in this Act directed respecting money received by him or her arising from a sale under the power of sale conferred by this Act, but the costs, charges and expenses shall include the costs, charges and expenses properly incurred of recovering and receiving the money or securities and of conversion of securities into money, instead of those incident to sale.

RSN1970 c63 s8

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Amount and application of insurance money

      16. (1) The amount of an insurance effected by a mortgagee against loss or damage by fire shall not exceed the amount specified in the mortgage deed, or, where no amount is specified, shall not exceed 2/3 of the amount that would be required, in case of total destruction, to restore the property insured.

             (2)  An insurance shall not be effected by a mortgagee

             (a)  where there is a declaration in the mortgage deed that no insurance is required;

             (b)  where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed; or

             (c)  where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure.

             (3)  All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.

             (4)  Without prejudice to an obligation to the contrary imposed by law or by special contract, a mortgagee may require that money received on an insurance be applied in or towards discharge of the money due under his or her mortgage.

RSN1970 c63 s9

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Sale of mortgaged property in action for foreclosure

      17. (1) A person entitled to redeem mortgaged property may have a judgment or order for sale, instead of for redemption, in an action brought by him or her either for redemption alone, or for sale or redemption, in the alternative.

             (2)  In an action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment of mortgage money, the court, on the request of the mortgagee, or of a person interested either in the mortgage money or in the right of redemption, and notwithstanding the dissent of another person, and notwithstanding that the mortgagee or an interested person does not appear in the action, and without allowing any time for redemption or for payment of mortgage money, may, where it thinks appropriate, direct a sale of the mortgaged property on the terms that it thinks appropriate, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of sale and to secure performance of the terms.

             (3)  In an action brought by a person interested in the right of redemption and seeking a sale, the court may, on application of a defendant, direct the plaintiff to give the security for costs that the court thinks appropriate, and may give the conduct of the sale to a defendant, and may give the directions that it thinks appropriate respecting the costs of the defendant.

             (4)  In a case referred to in this section the court may, where it thinks appropriate, direct a sale without previously determining the priorities of encumbrances.

RSN1970 c63 s10

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Registration of release of mortgage

      18. Where a release of mortgage in relation to property is dated later than a conveyance to a purchaser of that property by the mortgagor referred to in that release, that release of mortgage shall be considered for conveyancing purposes to have effect as if it were dated, executed and delivered the moment before the date of that conveyance.

1982 c34 s1

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Discharge of mortgage

      19. (1) Where a proceeding is brought by a mortgagee for the recovery of the possession of mortgaged lands or tenements and no other action is then pending on or touching the foreclosure or redemption of the mortgaged lands or tenements, the person who has the right to redeem the mortgaged lands or tenements and has appeared and has become a defendant in the proceeding may, pending the proceeding,

             (a)  pay to the mortgagee; or

             (b)  pay into court, where the mortgagee refuses to accept payment,

the principal and interest due on the mortgage together with the costs of the mortgagee in bringing the proceeding.

             (2)  The amount of the principal, interest and costs due on the mortgage are to be determined by a judge or an officer of the court appointed by a judge.

             (3)  Money paid under subsection (1) is in full satisfaction of the mortgage, and the judge

             (a)  shall discharge the mortgagor; and

             (b)  shall order the mortgagee, at the cost of the mortgagor,

                      (i)  to assign, surrender and reconvey the mortgaged lands and tenements or the estate and interest that the mortgagee has in the mortgaged lands and tenements, and

                     (ii)  to deliver up all deeds, evidences and writings in his or her custody relating to the title of the mortgaged lands and tenements to the mortgagor.

             (4)  This section does not apply

             (a)  where the mortgagee, by written notice served on the person seeking redemption before the money is brought into court, states

                      (i)  that the person seeking redemption does not have the right to redeem, or

                     (ii)  that the lands or tenements are chargeable with other and different sums than those that appear on the face of the mortgage or are admitted by the mortgagor;

             (b)  where the right to redeem the mortgaged lands or tenements is a matter of controversy between different defendants in the proceeding; or

             (c)  so as to prejudice a subsequent mortgage or encumbrance.

1986 c42 Sch C

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Mortgagee shall transfer property

      20. (1) Notwithstanding a stipulation to the contrary, where a mortgagor is entitled to redeem, the mortgagor may require the mortgagee, instead of reconveying and on the terms on which the mortgagee would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to a 3rd person as the mortgagor directs, and the mortgagee is bound to assign and convey accordingly.

             (2)  The right of the mortgagor to require an assignment belongs to and is capable of being enforced by each encumbrancer or by the mortgagor, notwithstanding an intermediate encumbrance; but a requisition of an encumbrancer prevails over that of the mortgagor, and as between encumbrancers a requisition of a prior encumbrancer prevails over that of a subsequent encumbrancer.

             (3)  A mortgagee may require a mortgagor to pay a fee not exceeding $50 for the assignment of a mortgage debt and the conveyance of the mortgaged property under this section.

             (4)  This section does not apply where the mortgagee is or has been in possession.

1988 c37 s2

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Right of mortgagor to inspect title deeds

      21. Notwithstanding a stipulation to the contrary, a mortgagor, as long as his or her right to redeem exists, is entitled, at reasonable times, on his or her request, and at his or her own cost and on payment of the mortgagee's costs and expenses in that behalf, to inspect and make copies or abstracts of or extracts from the documents of title and an appraisal report relating to the mortgaged property in the possession of the mortgagee.

1988 c37 s2

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Short form of covenants in leases

      22. Where, in a lease of chattels real for a term in consideration of an annual rental reserved and made payable, and of covenants and conditions to be performed and fulfilled

             (a)  the lessee covenants with the lessor

                      (i)  to pay rent; these words shall have the effect of the following words: That the lessee will, during the term, pay to the lessor the rent reserved, without a deduction, defalcation or abatement,

                     (ii)  and to pay taxes; these words shall have the effect of the following words: And will pay all taxes, rates, duties and assessments, whether municipal, parliamentary or otherwise, now charged or to be charged upon the demised premises or upon the lessor on account of the demised premises,

                    (iii)  and to repair; these words shall have the effect of the following words: And will, during the term, repair, amend, maintain and keep the demised premises, with the appurtenances, in good repair, and all fixtures and things belonging to the premises or that during the term are erected and made on the premises when, where, and as often as needed,

                    (iv)  and that the lessor may enter and view the state of repair, and that the lessee will repair according to notice; these words shall have the effect of the following words: And it is agreed that it is lawful for the lessor and the lessor's agents at reasonable times during the term to enter the demised premises to examine the condition of the premises, and that all want of reparation that upon that examination is found, and for the amendment of which written notice is left at the premises, the lessee will, within 3 calendar months after the notice, repair and make good accordingly,

                     (v)  and will not assign or sublet; these words shall have the effect of the following words: And the lessee shall not, during the term, assign, transfer or set over, or otherwise by an act or deed procure the premises to be assigned, transferred, set over or sublet to a person, without the written consent of the lessor, which consent will not arbitrarily or unreasonably be withheld, or charged for, unless the landlord has actually incurred expense in respect of the grant of consent,

                    (vi)  and that the lessee will leave the premises in good repair; these words shall have the effect of the following words: And the lessee will, at the expiration or other sooner determination of the term, peaceably surrender to the lessor the premises demised, with the appurtenances, together with the buildings, erections and fixtures, in good and substantial repair and condition, reasonable wear and tear and damage by fire only excepted,

                   (vii)  provided that the lessor may re-enter upon non-payment of rent or non-performance of covenants; these words shall have the effect of the following words: Provided that if the rent reserved, or a part of the rent reserved, is unpaid for 10 days after the day on which the rent ought to have been paid, although no formal demand has been made, or in case of the breach or non-performance of a covenant or agreements by the lessee, then it shall be lawful for the lessor to re-enter the premises and the lessor to have again, repossess and enjoy as of his or her former estate;

             (b)  the lessor covenants with the lessee for quiet enjoyment; these words shall have the effect of the following words: The lessee paying the rent reserved and performing the covenants in paragraph (a) shall and may peaceably possess and enjoy the demised premises for the term granted without interruption or disturbance from the lessor or a person lawfully claiming under the lessor.

RSN1970 c63 s11; 1975 No70 s2

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Application of sections

      23. Sections 25 to 30 do not apply to residential premises as defined under the Residential Tenancies Act.

1986 c42 Sch C; 1988 c44 s42

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Notice to landlord

      24. (1) Where a tenant has received notification of a proceeding for the recovery of the possession of property of which he or she is a tenant, or has knowledge of such a proceeding, the tenant shall immediately give notice to his or her landlord, receiver, agent or bailiff of the proceeding.

             (2)  Where a tenant has failed to give notice under subsection (1), the tenant is subject to a penalty the equivalent of 3 years rack rent on the property of which he or she is a tenant.

1986 c42 Sch C

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Action to recover possession

      25. (1) Where 1/2 year's rent is in arrears and the landlord to whom the rent is due has the right to re-enter for the non-payment of rent, the landlord may, without a formal demand or re-entry, start a proceeding to recover the demised property.

             (2)  Where the statement of claim cannot be served, or a tenant is not in actual possession of the property, the landlord may attach a copy of the statement of claim

             (a)  on a building on the property; or

             (b)  upon some other prominent object on the land, where the proceeding is not to recover a building on the property,

and that attaching is considered to be personal service.

             (3)  Where the plaintiff shows by affidavit where the defendant does not file a defence, or proves upon the trial of the proceeding where the defendant appears,

             (a)  that 1/2 year's rent was due before the proceeding was started;

             (b)  that distress was not found on the demised premises sufficient to meet the arrears due; and

             (c)  that the landlord had the right to re-enter the property,

the judge may give a decision or order to the plaintiff for possession.

             (4)  The remedy set out in this section is in addition to other remedies the landlord may have.

1986 c42 Sch C

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Tender of arrears

      26. Where a tenant, before the trial in a proceeding for possession, pays or tenders the arrears of rent and costs to the landlord, or pays them into court, all further proceedings in the action stop.

1986 c42 Sch C

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Final judgment

      27. (1) Where a tenant permits an order or decision to be obtained and an order to be executed

             (a)  without paying the arrears of rent together with the costs of the proceeding; and

             (b)  without proceeding for equitable relief within 6 months after execution,

the tenant is barred from all relief and the landlord holds the demised premises discharged from the lease.

             (2)  This section does not bar the right of a mortgagee of a lease where the mortgagee, within the period of 6 months set out in subsection (1),

             (a)  pays the arrears of rent, damages and costs of the proceeding to the landlord; and

             (b)  performs all the covenants and agreements that the tenant has agreed to perform.

1986 c42 Sch C

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Stay of proceedings

      28. (1) Where the tenant, or other person claiming an interest in a lease, applies for equitable relief within the period of 6 months set out in section 27, that tenant or other person is not entitled to a stay of proceedings until he or she pays into court the arrears of rent and the costs of the proceeding.

             (2)  The sums of money paid into court under subsection (1)

             (a)  may remain in the court until the conclusion of the hearing into the application for equitable relief; or

             (b)  may be paid out to the landlord by order of the judge, subject to the final order of the judge.

1986 c42 Sch C

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Set-offs of rents

      29. The judge shall set off against arrears of rent and costs ordered to be paid by the tenant rent paid to the landlord before the restoration of the tenant to possession of the demised premises.

1986 c42 Sch C

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Effect of relief

      30. Where a tenant obtains equitable relief, the tenant holds the demised premises in accordance with the existing lease without the requirement of a new lease.

1986 c42 Sch C

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Possession

      31. In a proceeding for possession, the court may

             (a)  grant an order of possession of all or a part of the property claimed; or

             (b)  where a person is in possession of all or part of the property claimed, in good faith under colour of right, award damages.

1986 c42 Sch C

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Execution under power of attorney

      32. The donee of a power of attorney may, where he or she thinks appropriate, execute a deed in and with his or her own name and signature and his or her own seal, by the authority of the donor of the power; and a deed so executed shall be as effectual in law as if it had been executed by the donee of the power in the name and with the signature and seal of the donor of the power.

RSN1970 c63 s12

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Payment by attorney under power

      33. (1) A person making a payment or doing an act, in good faith, in accordance with a power of attorney, shall not be liable in respect of the payment or act because before the payment or the act the donor of the power had died or become mentally incompetent, or insolvent, or had revoked the power, if the fact of death, mental incompetence, insolvency, or revocation was not at the time of the payment or act known to the person making or doing the payment or act.

             (2)  This section shall not affect a right against the payee of a person interested in money so paid; and that person shall have the same remedy against the payee as he or she would have had against the payer if the payment had not been made by him or her.

RSN1970 c63 s13; 1992 c48 s7

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Effect of power of attorney for value

      34. Where a power of attorney, given for valuable consideration, is, in the deed creating the power, expressed to be irrevocable, then, in favour of a purchaser,

             (a)  the power shall not be revoked, either by anything done by the donor of the power, without the concurrence of the donee of the power, or by the death, marriage, mental incompetence, or insolvency of the donor of the power;

             (b)  an act done by the donee of the power, in accordance with the power, is as valid as if anything done by the donor of the power, without the concurrence of the donee of the power, or the death, marriage, mental incompetence, or insolvency of the donor of the power, had not been done or happened; and

             (c)  neither the donee of the power nor the purchaser shall be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, mental incompetence, or insolvency of the donor of the power.

RSN1970 c63 s14

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Effect of power of attorney for value or not made irrevocable for fixed time

      35. Where a power of attorney, whether given for valuable consideration or not, is, in the instrument creating the power, expressed to be irrevocable for a fixed time specified, not exceeding 1 year from the date of the instrument, then in favour of a purchaser,

             (a)  the power shall not be revoked for and during that fixed time either by anything done by the donor of the power, without the concurrence of the donee of the power, or by the death, marriage, mental incompetence, or insolvency of the donor of the power;

             (b)  an act done within that fixed time by the donee of the power, in accordance with the power, is as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental incompetence, or insolvency of the donor of the power, had not been done or happened; and

             (c)  neither the donee of the power nor the purchaser shall be prejudicially affected by notice, either during or after that fixed time, of anything done by the donor of the power during that fixed time, without the concurrence of the donee of the power, or of the death, marriage, mental incompetence, or insolvency of the donor of the power, within that fixed time.

RSN1970 c63 s15

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Receipt in deed sufficient

      36. (1) A receipt for money or other consideration in the body of a deed shall be a sufficient discharge for the money or other consideration to the person paying or delivering the money or other consideration, without a further receipt for the money or other consideration being endorsed on the deed.

             (2)  A receipt for money or other consideration in the body of a deed, or endorsed on the deed, shall, in favour of a subsequent purchaser, not having notice that the money or other consideration acknowledged to be received was not, in fact, paid or given, wholly or in part, be sufficient evidence of the payment or giving of the whole amount.

RSN1970 c63 s16

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Covenants to bind executors, etc.

      37. A covenant relating to land is considered to be made with the covenantee, his or her executors, administrators and assigns, and has effect as if executors, administrators and assigns were mentioned.

RSN1970 c63 s17

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Covenants to extend to executors, etc.

      38. (1) A covenant, and a contract under seal, and a bond or obligation under seal, though not expressed to bind the executors, administrators and estate, operates in law to bind the executors and administrators and estate of the person making the covenant, contract under seal, bond or obligation under seal as if these words were expressed.

             (2)  This section extends to a covenant implied by virtue of this Act.

             (3)  This section applies only where a contrary intention is not expressed in the covenant, contract, bond or obligation, and shall have effect subject to the terms and to the provisions contained in the covenant, contract, bond or obligation.

RSN1970 c63 s18

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Provision for all the estate, etc.

      39. (1) A conveyance is effectual to pass all the estate, right, title, interest, claim and demand that the conveying parties respectively have in, to, or on the property conveyed, or expressed or intended to be, or which they respectively have power to convey in, to, or on the property conveyed.

             (2)  This section applies only where a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions contained in the conveyance.

RSN1970 c63 s19

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Notices

      40. (1) A notice required or authorized by this Act to be served shall be in writing.

             (2)  A notice required or authorized by this Act to be served on a lessee or mortgagor or other registered encumbrancer or guarantor shall be sufficient, although only addressed to the lessee or mortgagor or other registered encumbrancer or guarantor by that designation, without his or her name, or generally to the persons interested, without a name, and notwithstanding that a person to be affected by the notice is absent, under disability, unborn or unascertained.

             (3)  A notice required or authorized by this Act to be served shall be sufficiently served if it is left at the last known place of residence or business in this province of the person to be served, or, in case of a notice required or authorized to be served on a mortgagor, is attached or left for him or her on the land or a house or building comprised in the mortgage.

             (4)  A notice required or authorized by this Act to be served shall also be sufficiently served if it is sent by mail in a registered letter addressed to the person to be served, by name, at the last known place of residence or business, and if that letter is not returned through the post office undelivered.

             (5)  Service shall be considered to be made at the time at which the registered letter would in the ordinary course be delivered.

RSN1970 c63 s21; 1988 c37 s3

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Definition of non-resident mortgagee

      41. For the purposes of sections 42 to 45 a "non-resident mortgagee" means a mortgagee of land in the province who

             (a)  lives outside the province for more than 5 months a year, where the mortgagee is a natural person; or

             (b)  has its head office outside the province, where the mortgagee is a corporation.

1978 c2 s1

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Duty on non-resident mortgagee to have attorney

      42. (1) A non-resident mortgagee shall have and maintain in the province an attorney who is authorized to execute releases of mortgage of land on behalf of the mortgagee.

             (2)  Where a mortgagor forwards to a non-resident mortgagee a certified cheque or cash for all money owed under a mortgage of land, the attorney of the non-resident mortgagee, appointed under subsection (1), shall, immediately upon receipt of that money by the mortgagee, execute a release of mortgage.

             (3)  A mortgagor may forward a certified cheque or cash for all money owed to a non-resident mortgagee under a mortgage of land to the attorney of the non-resident mortgagee appointed under subsection (1) and the attorney of the non-resident mortgagee shall accept the money tendered and execute a release of mortgage as soon as practicable.

             (4)  The receipt by an attorney of a non-resident mortgagee appointed under subsection (1) of an amount tendered under subsection (3) shall be considered, for all purposes of compliance with the terms of a mortgage deed and this Act, to be receipt by the non-resident mortgagee.

             (5)  A non-resident mortgagee who contravenes subsection (1) or (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding $1,000 for each mortgage of land held by him or her while he or she is in default of subsection (1) or (2).

1978 c2 s1; 1982 c34 s2; 1988 c37 s4

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Registration of power of attorney

      43. A power of attorney entered into under section 42 shall be registered by the non-resident mortgagee in the Registry of Deeds.

1978 c2 s1

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Court may execute release

      44. (1) Where

             (a)  a non-resident mortgagee does not appoint an attorney under section 42;

             (b)  an attorney appointed under section 42 fails to execute a release of mortgage on behalf of a non-resident mortgagee; or

             (c)  a non-resident mortgagee fails to register the power of attorney under section 43,

a mortgagor who has entered into a mortgage of land with that non-resident mortgagee may apply to the court to execute a release of mortgage.

             (2)  A release of mortgage applied for under subsection (1) shall be executed on behalf of the non-resident mortgagee where the court is satisfied

             (a)  that all money owed under the mortgage has been paid to the non-resident mortgagee, or has been paid into court; and

             (b)  that a release of mortgage is due the mortgagor.

             (3)  A release of the mortgage executed under this section has the same effect as if it had been executed by the non-resident mortgagee.

2013 c16 s25

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Payment out of court

      45. Money paid into court under section 44 shall be paid over to the non-resident mortgagee, without interest accruing after the date the money has been paid into court, upon the application of the mortgagee.

2013 c16 s25

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Claim for partition

      46. Where property is held in joint tenancy or tenancy in common, a person who has joint title or possession of the property may start a proceeding claiming a partition of the property against all persons who have a joint title or title in common with that person of the property and refuse to make a fair partition of it.

1986 c42 Sch C

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Procedure

      47. (1) A person who may maintain a proceeding for partition may proceed against 1 or more of the parties interested in the property without serving the other parties and the defendant to such a proceeding may not object to the proceeding for lack of parties.

             (2)  At the hearing of the proceeding the judge may direct inquiries as to the nature of the property, the persons interested in the property, and other matters that the judge thinks necessary with a view to an order for partition and sale to be made on further examination by the judge.

             (3)  All persons determined by the judge to be interested in a partition proceeding under subsection (2) shall be served with notice by the plaintiff following completion of the initial hearing under subsection (1).

             (4)  The parties to whom notice is given are bound by the order as if they had been parties to the proceeding and may attend the proceedings as parties.

1986 c42 Sch C

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Where titled denied

      48. Where the defendant to a partition proceeding pleads that the plaintiff does not hold the property jointly or in common with the defendant, the judge shall decide that issue before proceeding to an order for partition.

1986 c42 Sch C

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Partition order

      49. (1) The judge may proceed to examine into the title of the plaintiff and the quantity or proportion of the property to which the plaintiff is entitled and give an order for partition where,

             (a)  the judge makes a decision under section 48 that the plaintiff holds the property jointly or in common with the defendant;

             (b)  the defendant does not file a defence; or

             (c)  the defendant admits that the plaintiff holds the property jointly or in common with him or her.

             (2)  A partition order may be directed to the sheriff or a referee to ascertain, assign or deliver the several parts or shares of the property in the manner that the judge directs.

1986 c42 Sch C

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Final judgment

      50. (1) Upon the execution of the partition order and 8 days after notice has been served upon the occupier or tenant of the property the judge may enter final order in the proceeding.

             (2)  A final order entered under subsection (1) binds all persons, whatever right or title they may have in the property, unless the occupier, tenant, or other person interested in the property

             (a)  within 3 months; or

             (b)  within 1 year of the return or termination of the disability in the case of a person who is under 19 years of age, mentally incapacitated or absent from the province,

applies to the court and shows cause why the final order and order of partition should not stand.

             (3)  Where the judge finds that the final order should be set aside, the proceeding is to proceed as if the final order had not been given.

             (4)  Where the judge finds that the final order should not be set aside, it is confirmed as against the person who has applied to the court under subsection (2) but not as against another person who is absent or under a disability and the person who has applied shall pay the costs of the proceeding.

             (5)  Where a person applies under subsection (2) and shows an inequality in the partition, the judge may award a new partition that binds the person applying but does not bind another person who is absent or under a disability.

1986 c42 Sch C; 1992 c48 s7

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Joining of guardian

      51. (1) Where a person who is mentally incapacitated or is under the age of majority has an interest in property that is the subject of a partition proceeding, the judge

             (a)  may of his or her own motion;

             (b)  may upon the motion of a party to the proceeding; or

             (c)  may upon the motion of a guardian or next friend of that person,

direct the guardian or next friend to be made a party to the proceeding.

             (2)  Where a guardian or next friend is made a party to a proceeding, the final order is binding on the person represented by the guardian or next friend.

             (3)  Where there is no guardian, the judge may appoint a guardian to represent the person under a disability.

1986 c42 Sch C

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Registration of judgment

      52. (1) The court shall register a certified copy of the final order in a partition proceeding in the Registry of Deeds.

             (2)  The fee payable to the court for the certified copy of the final order and the fee payable to the Registrar of Deeds on the registration in the Registry of Deeds shall be paid to the court at the time of entering the final order by the party requesting the entry of that final order.

2013 c16 s25

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Right to order sale

      53. The court may, on the request of a party to a partition proceeding and notwithstanding the dissent or disability of a party, direct a sale and distribution of the proceeds where,

             (a)  because of the nature of the property;

             (b)  because of the number of persons interested in the property;

             (c)  because of the absence or disability of some of the parties; or

             (d)  because of other circumstances,

a sale of the property and distribution of the proceeds would be more beneficial to the parties interested than a division of the property.

1986 c42 Sch C

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Duty to order sale

      54. The court shall direct a sale of the property and a distribution of the proceeds instead of a division of the property, unless there are good reasons to the contrary, where the parties interested individually or collectively to the extent of 1/2 or more of the property request a sale.

1986 c42 Sch C

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Purchase of share

      55. (1) The court may direct a sale of the property and a distribution of the proceeds instead of a division of the property where a party requests such a sale unless all or some of the other parties agree to purchase the share of the party requesting the sale.

             (2)  Where the parties agree to purchase the share of the party requesting the sale, the court may order a valuation of that party's share in the manner that it thinks appropriate and may give all directions necessary in this regard.

1986 c42 Sch C

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Ancillary direction

      56. The court may give all directions necessary for the sale of the property where a sale is directed under sections 53 to 55.

1986 c42 Sch C

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Party may bid

      57. The court may allow a party to bid at a sale under sections 53 to 55 on those terms as to

             (a)  non-payment of deposit;

             (b)  setting off or accounting for the purchase money or part of the purchase money, instead of paying it; or

             (c)  other matters,

that the court considers reasonable.

1986 c42 Sch C

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Value of rent charge

      58. Where the interest of a party is a rent charge or annuity, the court may make an order

             (a)  necessary to ascertain its value, either as a share of or charge upon the property or a part of the property; and

             (b)  necessary for distributing, settling and providing for the application of the order,

as if the interest of that party were a share of the property itself.

1986 c42 Sch C