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To make provision relating to conveyancing and the law of property; to make provision concerning agreements and deeds relating to land and other agreements; to make provision for the acquisition and holding of land and other property; to provide for standard agreements and deeds relating to land; to imply certain covenants and other provisions in agreements and deeds relating to land; to revise and consolidate certain miscellaneous provisions relating to land and other matters; and for connected purposes. [1 November 1984] (Originally 62 of 1984) Cap 219 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Conveyancing and Property Ordinance. Cap 219 s 2 Interpretation In this Ordinance, unless the context otherwise requires- "assignment" (转让、转让契) includes- (a) the transfer of the whole of the interest in land held under a Government lease; (Amended 31 of 1988 s. 2; 29 of 1998 s. 105) (b) a legal charge; (c) a lease (other than a Government lease); (Amended 29 of 1998 s. 105) (d) a surrender; (e) an assent; and (f) every other assurance or conveyance of land by any instrument;"bankruptcy" (破产) includes winding up; "borrower" (借款人), where used in the First, Second and Third Schedules, includes "mortgagor"; "encumbrance" (产权负担) includes a legal and equitable mortgage, a trust for securing money, a lien, a charge of a portion, annuity, or other capital or annual sum; and "encumbrancer" (产权负担人) has a meaning corresponding with that of "encumbrance" and includes every person entitled to the benefit of an encumbrance, or to require payment or discharge thereof; (Added 32 of 2000 s. 6) "equitable interest" (衡平法权益) means any estate, interest or charge in or over land which is not a legal estate or a freehold; "instrument" (文书) means any document having legal effect except a will; "land" (土地) includes- (a) land covered by water; (b) any estate, right, interest or easement in or over any land; (bb) the whole or part of an undivided share in land and any estate, right, interest or easement in or over the whole or part of an undivided share in land; and (Added 31 of 1988 s. 2) (c) things attached to land or permanently fastened to anything attached to land;"legal charge" (法定押记) means a mortgage expressed to be a legal charge; "legal estate" (法定产业权) means- (a) a term of years absolute in land; (b) the legal interest in any easement, right or privilege in or over land for an interest equivalent to a term of years absolute; and (c) a legal charge;"lender" (贷款人), where used in the First, Second and Third Schedules, includes "mortgagee"; "mortgage" (按揭) means a security over land for securing money or money's worth; "mortgage money" (按揭金) means the money, or money's worth, secured by a mortgage; "mortgagee" (承按人) includes any person claiming under a mortgagee; "mortgagor" (按揭人) includes any person claiming under a mortgagor; "sale" (售卖), in relation to the sale of land, includes the disposition of all or part of the vendor's estate and interest under a Government lease; (Amended 29 of 1998 s. 105) "term of years absolute" (绝对年期) includes a term for less than a year, for a year or years and a fraction of a year and from year to year. Cap 219 s 3 Land contracts to be in writing PART II GENERAL RULES AFFECTING PROPERTY (1) Subject to section 6(2), no action shall be brought upon any contract for the sale or other disposition of land unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged or by some other person lawfully authorized by him for that purpose. (2) This section applies to contracts or other dispositions whenever made and does not affect the law relating to part performance or sales by the court. [cf. 1925 c. 20 s. 40 U.K.] Cap 219 s 4 Legal estate to be disposed of etc. by deed (1) A legal estate in land may be created, extinguished or disposed of only by deed. (2) This section does not apply to- (a) an assent in writing by a personal representative; (b) a disclaimer made in accordance with section 59 of the Bankruptcy Ordinance (Cap 6) or section 268 of the Companies Ordinance (Cap 32); (c) a surrender by operation of law, including a surrender which may, by law, be effected without writing; (d) the grant, disposal or surrender of a lease taking effect in possession for a term not exceeding 3 years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without a premium; (e) other assurances not required by law to be made in writing; (f) a receipt not required by law to be under seal; (g) a vesting order or vesting declaration by a court or other competent authority; (h) a creation, extinguishment or disposal of a legal estate in land by operation of law. [cf. 1925 c. 20 s. 52 U.K.] Cap 219 s 5 Certain instruments to be in writing (1) Subject to section 6- (a) no equitable interest in land can be created or disposed of except by writing signed by the person creating or disposing of the same, or by his agent thereunto lawfully authorized in writing, or by will, or by operation of law; (b) a declaration of trust respecting land or any interest therein shall be manifested and proved in writing signed by the person who is able to declare such trust or by his will. (Amended 31 of 1988 s. 3)(2) This section does not affect the creation or operation of resulting, implied or constructive trusts. [cf. 1925 c. 20 s. 53 U.K.] Cap 219 s 6 Creation of interest in land by parol (1) All interests in land created by parol and not put in writing and signed by the persons creating the same, or by their agents thereunto lawfully authorized in writing, have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. (2) Nothing in section 3 or 5 or in subsection (1) shall affect the creation by parol of leases taking effect in possession for a term not exceeding 3 years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without a premium. [cf. 1925 c. 20 s. 54 U.K.] Cap 219 s 7 Savings in regard to sections 5 and 6 Nothing in section 5 or 6 shall- (a) invalidate dispositions by will; (b) affect any interest validly created before the commencement of this section; (c) affect the right to acquire an interest in land by virtue of taking possession; or (d) affect the operation of the law relating to part performance. [cf. 1925 c. 20 s. 55 U.K.] Cap 219 s 8 Severance of joint tenancy (1) A joint tenancy of an estate or interest in land may be severed at law only by- (a) a notice served by a joint tenant on the other joint tenants; or (b) an instrument.(2) A joint tenancy of an estate or interest in land may be severed in equity by a notice served by a joint tenant on the other joint tenants or by any other method that is effective in equity or that would, but for subsection (1), be effective at law. (Replaced 31 of 1988 s. 4) Cap 219 s 9 Presumption in favour of tenancy in common (1) Where a tenancy in the same estate or interest in land vests in 2 or more persons under an instrument or a will, it shall be presumed, unless the contrary intention is expressed in that instrument or will, that the tenancy vests in those persons as tenants in common rather than as joint tenants. (2) This section shall not apply to any instrument or will made before the commencement of this section. (3) This section shall not apply to a tenancy vesting in trustees or personal representatives. (Added 31 of 1988 s. 5) Cap 219 s 10 Corporation may hold as joint tenant (1) A corporation shall be capable of acquiring and holding any property in joint tenancy in the same manner as if it were an individual. (2) Where a corporation is a joint tenant of any property, on its dissolution, that property shall devolve on the other joint tenant. [cf. 1899 c. 20 s. 1 U.K.] Cap 219 s 11 Presumption of survivorship (1) Except for the purposes of section 4(11) of the Intestates' Estates Ordinance (Cap 73), where, after the commencement of this section, 2 or more persons die in circumstances rendering it uncertain that any one of them, or which of them, survived the other or others, such deaths shall, for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder. (2)-(3) [Amendments incorporated] [cf. 1925 c. 20 s. 184 U.K.] Cap 219 s 12 Application to court by vendor and purchaser Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2; 61 of 1999 s. 3 (1) A vendor or purchaser of land may apply by petition or by originating summons to the court in respect of any question arising out of or connected with any contract for the sale or exchange of land (not being a question affecting the existence or validity of the contract or relating to compensation payable by the Government or a public body), and the court may make such order upon the petition or originating summons and as to costs as to the court appears just. (61 of 1999 s. 3) (2) In this section, "court" (法院) means the Court of First Instance unless the vendor and purchaser submit to the jurisdiction of the District Court. (Amended 25 of 1998 s. 2) [cf. 1925 c. 20 s. 49 U.K.] Cap 219 s 12A Discharge of encumbrances by the court (1) Where land is subject to any encumbrance, whether immediately realizable or payable or not, and the encumbrancer is out of the jurisdiction, cannot be found or is unknown, or if it is uncertain who the encumbrancer is, the court may, if it thinks fit, on the application of the party for the time being entitled to redeem the encumbrance, direct or allow payment into court of a sum of money sufficient to redeem the encumbrance and any interest thereon. (2) Upon payment into court of the sum referred to in subsection (1), the court may, if it thinks fit, and either after or without any notice to the encumbrancer, as the court thinks fit, declare the land to be free from the encumbrance, and make any order for conveyance or vesting order as appropriate, and give directions for the retention and investment of the sum of money paid into court and for the payment or application of the income thereof, and for the payment of an amount certified by the court to be the reasonable costs of the applicant in making the application, such amount to be deducted from the sum of money paid into court. (3) On application by the encumbrancer or any person entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof. (4) In this section, "court" (法院) means the Court of First Instance unless the party to the application submits to the jurisdiction of the District Court. (Added 32 of 2000 s. 7) Cap 219 s 13 Proof of title and recitals Remarks: Amendments retroactively made - see 29 of 1998 s. 105 (1) Unless the contrary intention is expressed, a purchaser of land shall be entitled to require from the vendor, as proof of title to that land, only production of the Government lease relating to the land sold and- (Amended 29 of 1998 s. 105) (a) proof of title to that land- (i) where the grant of the Government lease was less than 15 years before the contract of sale of that land, extending for the period since that grant; or (Amended 29 of 1998 s. 105) (ii) in any other case, extending not less than 15 years before the contract of sale of that land commencing with an assignment, a mortgage by assignment or a legal charge, each dealing with the whole estate and interest in that land; (Replaced 31 of 1988 s. 6)(b) production of any document referred to in the assignment, mortgage or charge mentioned in paragraph (a) creating or disposing of an interest, power or obligation, which is not shown to have ceased or expired and subject to which any part of that land is disposed of; and (c) production of any power of attorney under which any document produced is executed where that document was executed less than 15 years before the contract of sale of that land. (Amended 31 of 1988 s. 6)(2) Where this section requires the production of any document, it shall be sufficient to produce a copy- (a) attested, before 1 November 1984, by 2 solicitors' clerks; or (b) certified by a public officer or a solicitor,to be a true copy. (Amended 31 of 1988 s. 6) (3) Subject to subsection (1), where any document produced as proof of title to any land contains a recital of any document dated or made before the date from which a vendor is required to prove title, the purchaser of that land shall assume, unless the contrary is proved, that- (a) the recital is correct; (b) the recital gives all the material contents of the document recited; and (c) the document recited was duly executed and perfected.(4) A recital, statement, and description of any fact, matter or party contained in any document of title, mortgage, declaration or power of attorney relating to any land and dated or made not less than 15 years before the contract of sale of that land shall, for the purposes of any question as to proof of title concerning the parties to that contract and unless the contrary is proved, be sufficient evidence of the truth of that recital, statement and description. (4A) Where any document is or has been produced by a vendor as proof of title to any land and that document purports to have been executed, not less than 15 years before the contract of sale of that land, under a power of attorney, it shall for the purposes of any question as to the title to that land be conclusively presumed- (a) as between the parties to that contract; and (b) in favour of the purchaser under that contract as against any other person,that the power of attorney- (i) was validly executed; (ii) was in force at the time of the execution of that document; and (iii) validly authorized the execution of that document. (Added 31 of 1988 s. 6)(5) This section affects only the rights and obligations of the parties to a contract for the sale of land entered into after the commencement of this section. Cap 219 s 14 Conversion of equitable interest to legal estate where right to Government lease Remarks: Amendments retroactively made - see 29 of 1998 s. 105 (1) Where a person has a right to a Government lease of any land upon compliance with any conditions precedent, then, upon compliance with those conditions- (a) the equitable interest under that right shall become a legal estate in that land as if held under a Government lease issued in accordance with that right; and (Amended 31 of 1988 s. 7) (b) for the purposes of section 42 and any other law, such a Government lease shall be deemed to have been issued upon compliance with those conditions.(2) Where, under an agreement for a Government lease entered into before 1 January 1970, a person has a right to a Government lease upon compliance with any conditions precedent he shall be deemed, for the purposes of this section, to have complied with those conditions on the commencement of this section. (3) Where under an agreement for a Government lease entered into on or after 1 January 1970, a person has a right to a Government lease upon compliance with any conditions precedent, he shall be deemed, for the purposes of this section, to have complied with those conditions- (a) upon the issue by the Government of a certificate that those conditions have been complied with and the registration of that certificate in the Land Registry under the Land Registration Ordinance (Cap 128); or (b) upon the endorsement by the Government on the Government lease of a note to the effect that those conditions have been complied with and the registration of a copy of that endorsement in the Land Registry under the Land Registration Ordinance (Cap 128); or (c) upon the entry on the register kept in the Land Registry under the Land Registration Ordinance (Cap 128) relating to the land of a note to the effect that those conditions have been complied with. (Amended 31 of 1988 s. 7; 8 of 1993 s. 2)(4) Where a person has a right to a Government lease of any land and that right is not subject to any conditions precedent- (a) the equitable interest under that right shall become a legal estate in that land as if held under a Government lease issued in accordance with that right; and (b) for the purposes of section 42 and any other law, such a Government lease shall be deemed to have been issued on the commencement of the Conveyancing and Property (Amendment) Ordinance 1988 (31 of 1988) or on the date of the grant of that right, whichever is the later. (Added 31 of 1988 s. 7)(5) Where a person has a right to a Government lease of any land and that land is partitioned by assignment or otherwise by deed, this section shall apply to each part of that land constituted by that partition, as it applies to the whole of that land, as if there were a right to a Government lease of each such part. (Added 31 of 1988 s. 7) (6) Where a person has a Government lease, or a right to a Government lease, of any land and additional land is granted to that person with the intent that he should hold it as part of the land leased, this section shall apply to that additional land as if that additional land were part of the land originally leased and held subject to any further conditions precedent imposed when that additional land was granted. (Added 31 of 1988 s. 7) (Amended 29 of 1998 s. 105) Cap 219 s 14A Modification of Government lease Remarks: Amendments retroactively made - see 29 of 1998 s. 105 (1) Any modification in writing by the Government of the covenants, terms or conditions of a Government lease shall have the same effect as if made by deed. (Amended 29 of 1998 s. 105) (2) Subsection (1) applies to a modification made before or after the commencement of the Conveyancing and Property (Amendment) Ordinance 1988 (31 of 1988). (Added 31 of 1988 s. 8) Cap 219 s 15 Construction of words and expressions Remarks: Adaptation amendments retroactively made - see 26 of 1998 s. 44; 61 of 1999 s. 3 PART III INSTRUMENTS Unless the contrary intention appears, in any instrument affecting land made after the commencement of this section- (a) any definition used in, or, by this section, incorporated into, that instrument shall extend to the grammatical variations and cognate expressions of the word or expression defined; (b) words and expressions importing the masculine gender include the feminine; (Amended L.N. 387 of 1987) (c) words and expressions in the singular include the plural and words and expressions in the plural include the singular; (Amended L.N. 387 of 1987) (d) Chinese words and terms shall be construed according to Chinese language and custom and, if there is any conflict between Chinese words and terms and English words used in the instrument, the meaning of the English words shall prevail; and (e) "act" (作为) includes a series of acts, an omission or a series of omissions; "contravene" (违反) includes failure to comply; "court" (法院、法庭) means any court of Hong Kong of competent jurisdiction; "Crown lease" (官契) means a Government lease; (Replaced 26 of 1998 s. 44) "document" (文件) means any matter written, expressed or described upon any substance by means of letters, characters, figures or marks or by a combination of these; "general holiday" and "public holiday" (公众假期、公众假日) mean a general holiday within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap 1); (Added 26 of 1998 s. 44) "Government" (政府) means the Government of the Hong Kong Special Administrative Region; ( Amended 61 of 1999 s. 3) "Government lease" (政府租契) means a Government lease within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap 1); (Added 26 of 1998 s. 44) "Hong Kong" (香港) means Hong Kong within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap 1); (Added 26 of 1998 s. 44) "Kowloon" (九龙) means Kowloon within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap 1); (Replaced 26 of 1998 s. 44) "law" (法律、法例、法) means any law for the time being in force in, having legislative effect in, extending to or applicable to Hong Kong; "month" (月) means calendar month; "New Kowloon" (新九龙) means the area specified in the Fifth Schedule to the Interpretation and General Clauses Ordinance (Cap 1); "New Territories" (新界) means New Territories within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap 1); (Replaced 26 of 1998 s. 44) "occupy" (占用) includes use, inhabit, be in possession of or enjoy the land to which the word relates otherwise than as a mere servant or for the mere purpose of the care, custody or charge thereof; "or" (或), "other" and "otherwise" (其他、以其他形式、在其他情况下) shall be construed disjunctively and not as implying similarity, unless the word "similar" (相类) or some other word of like meaning is added; "per cent" (厘、百分之), when used in relation to a rate of interest payable in any circumstances, means the rate of interest specified payable in respect of a year, unless it is expressly provided that it is payable in respect of any other period; "person" (人、人士、个人、人物、人选) includes any public body or body of persons, corporate or unincorporate; "power" (权、权力) includes any privilege, authority or discretion; "registered" (注册), in relation to a document, means registered under any law applicable to the registration of that document; "sign" (签名、签署) includes, in the case of a person unable to write, the affixing or making of his seal, mark, thumbprint or chop; "year" (年) means a year according to the Gregorian calendar. (Amended 26 of 1998 s. 44) Cap 219 s 16 What an assignment is deemed to include (1) Unless the contrary intention is expressed in the assignment, an assignment shall operate to assign, with the land, all rights, interests, privileges, easements or appurtenances in, over, belonging or appertaining to that land or at the time of the assignment used, held, occupied or enjoyed with that land and things attached to the land or permanently fastened to anything attached to the land. (Amended 31 of 1988 s. 9) (2) This section shall not operate to give to any person a better title than that assigned or any better title than that enjoyed by the assignor. [cf. 1925 c. 20 s. 62 U.K.] Cap 219 s 17 Assignment passes whole estate Unless the contrary intention is expressed in the assignment, an assignment shall operate to assign all the estate, right and interest in the land assigned which the assignor has in that land and which he has the power to assign. [cf. 1925 c. 20 s. 63 U.K.] Cap 219 s 18 Receipt in body of an instrument (1) A receipt for consideration in the body of an instrument shall be a sufficient discharge to the person paying the consideration and, in favour of any other person acting on the faith of the receipt, shall be sufficient evidence of payment. (2) A solicitor producing an instrument containing a receipt for consideration shall be deemed to be authorized to receive that consideration unless the person liable to pay that consideration is served with a notice in writing stating that the solicitor is not so authorized. [cf. 1925 c. 20 ss. 67, 68 & 69 U.K.] Cap 219 s 19 Execution of deed by individual (1) A deed by an individual shall be signed by him. (2) A document shall be presumed to have been sealed by an individual if the document signed by him- (a) describes itself as a deed; or (b) states that it has been sealed; or (c) bears any mark, impression or addition intended to be or to represent a seal or the position of a seal.(3) Subsection (1) applies only to documents executed after the commencement of this section. (4) Subsection (2) applies to a document executed before or after the commencement of this section. (5) This section does not affect any other law by which an individual may authorize another person to sign a deed on his behalf. (Added 31 of 1988 s. 10) Cap 219 s 20 Execution of deed by corporation (1) In favour of a person dealing with a corporation aggregate in good faith, his successors in title and persons deriving title under or through him or them, a deed shall be deemed to have been duly executed by the corporation if the deed purports to bear the seal of the corporation affixed in the presence of and attested by its secretary or other permanent officer of the corporation and a member of the corporation's board of directors or other governing body or by 2 members of that board or body. (Amended 31 of 1988 s. 11) (2) Where a person is empowered to execute a deed by a corporation, he may execute the deed as agent by signing the name of the corporation or his own name and by affixing his own seal. (Amended 31 of 1988 s. 11) (3) Where a corporation aggregate is empowered to execute a deed by another person, an officer appointed for that purpose by the board of directors or other governing body of the corporation may execute the deed in the name of such other person; and where a deed purports to be so executed then the deed shall, in favour of a person dealing with the corporation in good faith, be deemed to have been executed by an officer duly authorized. (4) This section applies to transactions wherever effected, but only to deeds executed after the commencement of this section; except that, in the case of powers of appointment of an officer, they apply whether the power was conferred or the appointment was made before or after the commencement of this section. [cf. 1925 c. 20 s. 74 U.K.] Cap 219 s 21 Rights as to execution A person shall be entitled, at his own cost, to require that an assignment to him be executed in the presence of his agent. [cf. 1925 c. 20 s. 75 U.K.] Cap 219 s 22 Presumption as to capacity A party to any instrument shall be presumed, until the contrary is proved, to have full legal capacity to execute that instrument, to bind himself in terms of that instrument and to dispose of or hold any property or rights assigned under that instrument. Cap 219 s 23 Presumption as to due execution An instrument appearing to be duly executed shall be presumed, until the contrary is proved, to have been duly executed. Cap 219 s 23A Proof of title and presumptions of due execution of deed by corporation (1) A deed purporting to be- (a) executed prior to the commencement* of section 9 of the Law Amendment and Reform (Miscellaneous Provisions) Ordinance 2003 (14 of 2003) by or on behalf of a corporation aggregate; and (b) attested by a signatory or more than one signatory, where the signatory or each of the signatories, if more than one, is a person who could have been authorized under the articles of association or other instruments of the corporation,shall, until the contrary is proved, be presumed for the purposes of proof of title to any land to have been duly executed by the purported signatory or signatories, as the case may be, with the authority conferred by the articles of association or other instruments of the corporation, whether or not the source of the authority or the means by which such authority was purportedly conferred is apparent from the deed. (2) Where any deed is or has been produced by a vendor as proof of title to any land and that deed purports to have been executed by a corporation aggregate not less than 15 years before the contract of sale of that land, it shall for the purposes of any question as to the title to that land be conclusively presumed- (a) as between the parties to that contract; and (b) in favour of the purchaser under that contract as against any other person,that the deed was validly executed. (3) This section applies only to deeds produced as proof of title to any land pursuant to contracts for the sale of such land entered into on or after the commencement* of section 9 of the Law Amendment and Reform (Miscellaneous Provisions) Ordinance 2003 (14 of 2003). (Added 14 of 2003 s. 9)______________________________________________________________________________ Note: * Commencement date: 9 May 2003. Cap 219 s 24 Reservation of rights A reservation of any rights or interests in land may be effected in an assignment of the land in respect of which those rights are exercisable or interests are vested and a regrant of the rights or interests reserved shall not be necessary. Cap 219 s 25 Agreements, assignments etc. by person with or to himself (1) A person may, in one legal capacity, assign to, or agree or covenant with, himself in another legal capacity. (2) An assignment, agreement or covenant- (a) by a person to, or with, himself and another or others; or (b) by a person and another or others to, or with, himself,shall, unless the contrary intention is expressed and otherwise without prejudice to its effect in law, be enforceable between the parties as if that assignment, agreement or covenant were made- (i) in the case of paragraph (a), to, or with, the other or others alone; or (ii) in the case of paragraph (b), by the other or others alone.(3) This section shall not prevent any assignment, agreement or covenant being set aside on the grounds of fraud or breach of trust or other fiduciary relationship. (4) This section shall apply to an assignment, agreement and covenant made or entered into before or after the commencement of this section. (5) This section shall apply to assignments, agreements and covenants relating to land and other property. [cf. 1925 c. 20 ss. 72 & 82 U.K.] Cap 219 s 26 Benefits to non-parties A person may take an immediate or other interest granted to him in land or the benefit of any condition, right of entry, covenant or agreement granted to him over or in respect of land, although he may not be named as a party to the instrument. [cf. 1925 c. 20 s. 56 (1) U.K.] Cap 219 s 27 Description of deeds (1) A deed between parties, to effect its objects, has effect as an indenture although not indented or expressed to be an indenture. (2) A deed, whether or not an indenture, may be described as a deed simply or according to the nature of the transaction intended to be effected. [cf. 1925 c. 20 ss. 56 (2) & 57 U.K.] Cap 219 s 28 Supplemental instruments Any instrument (whether executed before or after the commencement of this section) expressed to be supplemental to a previous instrument shall be read and have effect as if the supplemental instrument contained the full recital of the previous instrument. [cf. 1925 c. 20 s. 58 U.K.] Cap 219 s 29 Effect of licences or permits granted to lessees Remarks: Amendments retroactively made - see 29 of 1998 s. 54 (1) Where a licence or permit is granted to a lessee to do any act, the licence or permit, unless otherwise expressed, extends only to- (a) the permission actually given; or (b) the specific breach of any provision or covenant referred to; or (c) any other matter thereby specifically authorized to be done,and the licence or permit does not prevent any proceeding for any subsequent breach unless otherwise specified in the licence or permit. (2) Notwithstanding any such licence or permit- (a) any right of re-entry contained in the lease remains in full force and is available as against any subsequent breach of covenant, condition or other matter not specifically authorized or waived, in the same manner as if no licence or permit had been granted; and (b) any right of re-entry remains in force in all respects as if the licence or permit has not been granted, except in respect of the particular matter authorized to be done.(3) Where in any lease there is a right of re-entry on the lessee assigning, subletting or doing any other specified act without a licence or permit, and a licence or permit is granted - (a) to any one of 2 or more lessees to do any act, or to deal with his share or interest; or (b) to any lessee, or to any one of 2 or more lessees to assign or underlet part only of the land, or to do any act in respect of part only of the land,the licence or permit does not operate to extinguish the right of re-entry in case of any breach of covenant or condition by the co-lessee of another share or interest in the land, or by the lessee of the rest of the land (as the case may be) in respect of such share or interest or remaining land, but the right of re-entry remains in force in respect of the share, interest or land not the subject of the licence or permit. (4) This section applies to a licence or permit granted before or after the commencement of this section. (5) Nothing in this section shall affect the provisions of the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap 126). (Amended 29 of 1998 s. 54) [cf. 1925 c. 20 s. 143 U.K.] Cap 219 s 30 Apportionment of conditions on severance (1) Notwithstanding the severance by assignment or otherwise of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the terms whereon each severed part is reversionary, or the term in the part of the land as to which the term has not been surrendered, or has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. (2) In this section "right of re-entry" (重收权) includes a right to determine the lease by notice to quit or otherwise or to give notice or make an application under any law which may result in the determination of the lease or the grant of a new lease; but where the notice or application is served by a person entitled to a severed part of the reversion so that it extends to part only of the land demised, the lessee may within one month determine the lease in regard to the rest of the land by giving to the owner of the reversionary estate therein a counter notice effective at the same time as the notice or application served by the person entitled to the severed part of the reversion is effective to determine the lease of that part. (3) This section applies to leases made before or after the commencement of this section and whether the severance of the reversionary estate or the partial avoidance or cesser of the term was effected before or after such commencement. [cf. 1925 c. 20 s. 140 U.K.] Cap 219 s 31 Rent and benefit of lessee's covenants to run with the reversion Remarks: Amendments retroactively made - see 29 of 1998 s. 54 (1) Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and without prejudice to any liability affecting a covenantor or his estate. (2) Any rent, covenant or provision mentioned in subsection (1) shall be capable of being recovered, received, enforced, and taken advantage of, by the person from time to time entitled, subject to the term granted by the lease, to the income of the whole or any part, as the case may require, of the land leased. (3) Where the person mentioned in subsection (2) becomes entitled as mentioned in that subsection by assignment or otherwise, the rent, covenant or provision mentioned in subsection (1) may be recovered, received, enforced or taken advantage of by him notwithstanding that he becomes so entitled after the condition of re-entry or forfeiture has become enforceable, but this subsection does not render enforceable any condition of re-entry or other condition waived or released before such person becomes entitled as aforesaid. (4) This section applies to leases made before or after the commencement of this section, but does not affect the operation of- (a) any severance of the reversionary estate; or (b) any acquisition by assignment or otherwise of the right to receive or enforce any rent covenant or provision,effected before the commencement of this section. (5) Nothing in this section shall affect the provisions of the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap 126). (Amended 29 of 1998 s. 54) [cf. 1925 c. 20 s. 141 U.K.] Cap 219 s 32 Obligation of lessor's covenants to run with reversion Remarks: Amendments retroactively made - see 29 of 1998 s. 54 (1) The obligation under a condition or of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by assignment, devolution in law, or otherwise; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and entered against any person so entitled. (2) This section applies to leases made before or after the commencement of this section, whether the severance of the reversionary estate was effected before or after such commencement. (3) This section takes effect without prejudice to any liability affecting a covenantor or his estate. (4) Nothing in this section shall affect the provisions of the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap 126). (Amended 29 of 1998 s. 54) [cf. 1925 c. 20 s. 142 U.K.] Cap 219 s 33 Lessor or mortgagee to have benefit of informal insurance The person entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire shall, on loss or damage by fire happening, have the same advantage from any then subsisting insurance relating to the building covenanted to be insured which has been effected by the lessee or mortgagor in respect of his interest under the lease or in the property or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an insurance effected in conformity with the covenant. Cap 219 s 34 Protection of purchaser against forfeiture under covenant for insurance Remarks: Amendments retroactively made - see 29 of 1998 s. 54 (1) Where, on the bona fide purchase of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written receipt of the person entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of the completion of the purchase an insurance in conformity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability, by way of forfeiture or damages or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase of which the purchaser had no notice before the completion of the purchase; but this provision is not to take away any remedy which the lessor or his personal representatives may have against the lessee or his personal representatives for breach of covenant. (2) Nothing in subsection (1) shall affect the provisions of the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap 126). (Amended 29 of 1998 s. 54) Cap 219 s 34A Provision requiring purchaser to pay costs of vendor void (1) This section applies to an agreement for the sale and purchase of undivided shares in land, together with a right to exclusive occupation of a unit or other interest- (a) in an uncompleted development of the land; or (b) in a completed development of the land where- (i) the vendor is the developer of the whole development; and (ii) no assignment of the unit or interest has been executed since the date on which the relevant occupation permit or certificate of compliance was issued in respect of the development.(2) This section also applies to an agreement for the sub-sale and sub-purchase of undivided shares in land, together with a right to exclusive occupation of a unit or other interest in an uncompleted or completed development referred to in subsection (1), but only where a solicitor or solicitor corporation, or 2 or more solicitors practising in partnership or association, is or are authorized, by or under the Legal Practitioners Ordinance (Cap 159), to act for both the sub-vendor and the sub-purchaser of those undivided shares. (3) Any provision of an agreement to which this section applies is void in so far as it would, but for this section, have the effect of requiring the purchaser or sub-purchaser of the undivided shares in the relevant land to pay the costs of the vendor or sub-vendor in or in relation to- (a) preparing, completing, stamping and registering the agreement; or (b) preparing, obtaining approval for and executing any instrument that gives effect to the agreement; or (c) preparing and executing any relevant preliminary agreement.(4) Subsection (3) has effect only where the vendor and purchaser, or the sub-vendor and sub-purchaser, under the agreement have separate legal representation. (5) In this section- "building" (建筑物) has the same meaning as in the Buildings Ordinance (Cap 123); "certificate of compliance" (完工证) means, in relation to land that is the subject of a Government grant, a document signed by or on behalf of the Director of Lands certifying that all of the positive obligations imposed on the grantee, and the grantee's successors and assignees, have been complied with to the satisfaction of that Director; "completed development" (已完成的土地发展项目) means- (a) a development in respect of which an occupation permit or a temporary occupation permit is issued under section 21(2) of the Buildings Ordinance (Cap 123) after the commencement of this section; or (b) a development that is completed after that commencement,and in respect of which any relevant certificate of compliance has been issued or is taken to have been issued, or the requisite consent has been obtained from the Director of Lands;"development" (发展项目) means a development involving the construction of a new building; "preliminary agreement" (初步协议) means an agreement (whether in writing or not) that is entered into with a view to making an agreement for sale and purchase to which this section applies; "stamping" (加盖印花), in relation to an agreement for sale and purchase to which this section applies, does not include the stamp duty payable in respect of the agreement or any document relating to the agreement; "uncompleted development" (未完成的土地发展项目) means a development- (a) for which neither a temporary occupation permit nor an occupation permit has been issued under section 21(2) of the Buildings Ordinance (Cap 123); or (b) that is otherwise uncompleted; or (c) where applicable, for which a certificate of compliance has not been issued or is taken not to have been issued. (Added 94 of 1997 s. 14)___________________________________________________________________ Note: This section does not apply to an agreement for the sale and purchase of undivided shares in land if the agreement was entered into before 8 August 1997. See s. 4 of Schedule 2 to 94 of 1997. Cap 219 s 35 Implied covenants Remarks: Amendments retroactively made - see 29 of 1998 s. 105 PART IV FORMS, COVENANTS AND CONDITIONS (1) There shall be implied- (a) in any assignment of the whole of the interest in land held under a Government lease, the covenant by a person who assigns, and the covenant by a person to whom an assignment is made, mentioned in Part I of the First Schedule; (Amended 31 of 1988 s. 12; 29 of 1998 s. 105) (b) in an assignment to a purchaser for valuable consideration, the covenants, by a person who is expressed to assign as beneficial owner, mentioned in Part II of the First Schedule; (c) in an assignment by way of voluntary disposition, the covenant, by a person who is expressed to assign as donor, mentioned in Part III of the First Schedule; (d) in any assignment, the covenant, by a person who is expressed to assign as trustee, confirmor, mortgagee, legal chargee, personal representative of a deceased person or under an order of court, mentioned in Part IV of the First Schedule; and (e) in a legal charge, the covenants, by a person who is expressed to charge as beneficial owner, mentioned in Part V of the First Schedule.(1A) The covenants implied under subsection (1)(a) shall be covenants to which section 41 applies. (Added 31 of 1988 s. 12) (1B) The benefit of the covenants implied under this section shall run with the land and shall be enforceable by the covenantee and his successors in title and persons deriving title under or through him or them. (Added 31 of 1988 s. 12) (1C) In paragraphs (a) to (d) of subsection (1), "assignment" (转让) does not include a legal charge. (Added 31 of 1988 s. 12) (1D) Unless the contrary intention is expressed, the liability of joint parties to any assignment or legal charge in respect of the covenants mentioned in subsection (1) shall be joint and several. (Added 31 of 1988 s. 12) (2) The covenants implied under this section may be excluded, varied or extended in the assignment or legal charge. (3) This section shall not affect any assignment or legal mortgage executed before the commencement of this section. [cf. 1925 c. 20 s. 76 U.K.] Cap 219 s 36 Other covenants and conditions The covenants and conditions mentioned in the Second Schedule, or any of them, may be incorporated into any instrument by reference. Cap 219 s 37 Standard forms A deed, agreement or receipt in the appropriate form given in the Third Schedule shall, in regard to form and expression, be sufficient. [cf. 1925 c. 20 s. 206 U.K.] Cap 219 s 38 Protection of solicitors etc. (1) The powers given by this Ordinance to any person and the covenants and conditions implied by, or incorporated by reference under, this Ordinance in any instrument shall be deemed in law proper to be included in the appropriate instrument and a solicitor, acting in good faith and with reasonable diligence, shall not be liable for failing to exclude those powers, covenants or conditions or to insert others in their place: Provided that this subsection shall not imply that the inclusion of other powers, covenants or conditions is improper. (2) A person acting in a fiduciary position, whether with or without a solicitor, shall be entitled to the protection afforded to a solicitor by subsection (1). [cf. 1925 c. 20 s. 182 U.K.] Cap 219 s 39 Benefit of covenants relating to land (1) A covenant relating to any land of the covenantee shall be deemed, unless the contrary intention is expressed, to be made with the covenantee and his successors in title and persons deriving title under or through him or them. (Amended 31 of 1988 s. 13) (2) This section shall apply to covenants entered into before or after the commencement of this section. [cf. 1925 c. 20 s. 78 U.K.] Cap 219 s 40 Burden of covenants relating to land (1) A covenant relating to any land of a covenantor or capable of being bound by him, shall be deemed, unless the contrary intention is expressed, to be made by the covenantor on behalf of himself, his successors in title and persons deriving title under or through him or them. (2) This section extends to a covenant to do some act relating to the land, notwithstanding that the subject matter may not be in existence when the covenant is made. (3) This section shall apply to covenants entered into before or after the commencement of this section. [cf. 1925 c. 20 s. 79 U.K.] Cap 219 s 41 Enforcement of covenants (1) This section applies to an express covenant and a covenant implied by or under this Ordinance or any other law. (2) This section applies to any covenant, whether positive or restrictive in effect - (a) which relates to the land of the covenantor; (b) the burden of which is expressed or intended to run with the land of the covenantor; and (c) which is expressed and intended to benefit the land of the covenantee and his successors in title or persons deriving title to that land under or through him or them.(3) Notwithstanding any rule of law or equity but subject to subsection (5), a covenant shall run with the land and, in addition to being enforceable between the parties, shall be enforceable against the occupiers of the land and the covenantor and his successors in title and persons deriving title under or through him or them by the covenantee and his successors in title and persons deriving title under or through him or them. (4) (a) For the purposes of the enforcement of a covenant, the following remedies shall be available- (i) proceedings for an injunction (including a mandatory injunction) or other equitable relief; (ii) an action for money due under the covenant; (iii) an action for damages (whether in respect of pecuniary or non-pecuniary kinds of damage). (b) For the purposes of ascertaining the existence, nature and effect of a covenant, a court of competent jurisdiction may make a declaration relating to those matters.(5) A positive covenant shall not, by virtue only of this section, be enforceable against- (a) a lessee from the covenantor or from a successor in title of the covenantor or from any person deriving title under or through the covenantor or a successor in title of the covenantor; or (b) any person deriving title under or through such a lessee; or (c) any person merely because he is an occupier of land.(6) A positive covenant is a covenant to expend money, do something or which is otherwise positive in nature. (7) A covenant shall be enforceable under this section whether or not the covenant is between owners of the same land. (8) A covenant shall not bind a person after he has ceased to have any estate or interest in the land affected by that covenant except in respect of a breach of that covenant committed by him before that cessation. (9) A covenant in an instrument registered in the Land Registry under the Land Registration Ordinance (Cap 128) against the land affected by the covenant shall bind the successors in title of the covenantor and the persons deriving title under or through him or them whether or not they had notice of the covenant. (Amended 8 of 1993 s. 2) (10) This section shall apply to covenants whether entered into before or after the commencement of the Conveyancing and Property (Amendment) Ordinance 1988 (31 of 1988). (Replaced 31 of 1988 s. 14) Cap 219 s 42 Saving of covenants, terms and conditions Remarks: Amendments retroactively made - see 29 of 1998 s. 105 (1) Any instrument entered into and taking effect after an agreement for the Government lease of the land affected by the instrument but before the issue of the Government lease of that land shall have the same force and effect in relation to that land after the issue of that Government lease as it had immediately before that issue. (Amended 31 of 1988 s. 15) (2) Where any instrument referred to in subsection (1) is registered under the Land Registration Ordinance (Cap 128), that registration shall continue in force after the issue of, and in relation to, the Government lease of the land affected by the instrument with effect from the date of registration; and the Land Registrar may make an entry directing attention to the provisions of this section in the Land Registry registers relating to any land affected by that instrument. (Amended 31 of 1988 s. 15; 8 of 1993 ss. 2 & 3) (3) Where a Government lease expires and is either renewed or replaced by a new Government lease relating to the same land, any covenant relating to that land shall, unless the contrary intention is expressed, continue to have effect. (Amended 29 of 1998 s. 105) Cap 219 s 43 Effect of agreement with 2 or more jointly (1) Any agreement or covenant relating to land or other property, express or implied, with 2 or more persons jointly to do any act for their benefit shall be deemed, unless the contrary intention is expressed, to include an obligation to do that act for the benefit of the survivor or survivors of them and for the benefit of any other person to whom the right to sue on the agreement devolves; and shall be construed as being made with each of them. (2) This section applies only to agreements entered into after 22 June 1979. [cf. 1925 c. 20 s. 81 U.K.] Cap 219 s 44 Mortgage of legal estate PART V MORTGAGES (1) After the commencement of this section, a mortgage of a legal estate, including any second or subsequent mortgage of that legal estate, may be effected at law only by a charge by deed expressed to be a legal charge. (2) Under a mortgage effected by a legal charge, the mortgagor and the mortgagee shall, subject to this Ordinance, have the same protection, powers and remedies (including but not limited to those relating to foreclosure and the equity of redemption but excluding the power of the mortgagee to enter into possession before any default by the mortgagor) as if the mortgage had been effected by way of assignment of the legal estate before the commencement of this section. (3) Upon the commencement of this section, a mortgage of a legal estate effected by way of assignment of the legal estate before the commencement of this section shall be deemed, for the purposes of this Ordinance, to be reassigned and discharged and replaced by a legal charge in the same terms and having the same validity and priority, subject to this Ordinance, as the mortgage which it replaces. (4) Subsection (3) does not affect- (a) the mortgagee's right to the possession of any documents; or (b) any rights or obligations, under any guarantee, suretyship or otherwise, ancillary to the mortgage replaced under that subsection.(5) Subject to any agreement between the mortgagor and the mortgagee, where the mortgaged land is mortgaged by way of legal charge, the mortgagor may execute a second or subsequent charge against the mortgaged land by a legal charge. (6) Unless the contrary intention is expressed, the mortgagee under the first mortgage of a legal estate shall be entitled to possession of the deeds of title relating to the mortgaged land. (7) This section does not affect any mortgage, including a mortgage by sub-demise, effected before the commencement of this section which is not replaced under subsection (3). (8) This section does not affect any mortgage, charge or lien arising under any Ordinance or by operation of law. (9) This section does not affect the right or interest of any person arising out of or consequent on the possession by him of any documents relating to a legal estate in land. Cap 219 s 45 Tacking (1) A mortgagee under prior mortgage may make a further advance or re-advance to rank in the same priority over a subsequent mortgage as the original advance under that prior mortgage- (a) if the subsequent mortgagee so consents; or (b) where the further advance or re-advance does not exceed, with any other outstanding advance or re-advance, the specified maximum amount secured under that prior mortgage; or (c) where that prior mortgage is in favour of an authorized institution (as defined in the Banking Ordinance (Cap 155)) and is expressed to secure all money which may, from time to time, be owing to the prior mortgagee, (Amended 27 of 1986 s. 137)and paragraphs (b) and (c) shall have effect whether or not the prior mortgagee had notice of the subsequent mortgage at the time when the further advance or re-advance was made by the prior mortgagee. (2) The priority to which a prior mortgagee is entitled under subsection (1) shall extend, in addition to the amount secured under the prior mortgage, to interest on that amount and to all costs, charges and expenses secured under the mortgage. (3) Subject to subsection (1), the right to tack in relation to land is abrogated: (Amended 31 of 1988 s. 16) Provided that nothing in this section shall affect any priority acquired before the commencement of this section. Cap 219 s 46 Conversion of equitable mortgage (1) Where an equitable interest becomes a legal estate under section 14, any equitable mortgage by deed over that equitable interest shall become a legal charge over that legal estate in the same terms, subject to this Ordinance, as are contained in that deed. (2) This section applies to equitable mortgages by deed executed before or after the commencement of this section. Cap 219 s 47 Inspection of title deeds (1) A mortgagor and a mortgagee not having possession of the deeds of title relating to the mortgaged land, for so long as they have an interest in that land, shall be entitled at any reasonable times to inspect and make copies of those deeds in the possession of a mortgagee. (2) This section applies to a mortgage made before or after the commencement of this section and notwithstanding any agreement to the contrary. Cap 219 s 48 Mortgage to 2 or more jointly Where any mortgage effected after the commencement of this section is expressed to be made to 2 or more persons jointly, the mortgage money shall (if and so far as the contrary intention is not expressed in the mortgage), as between them and the mortgagor, be deemed to be owing to these persons on a joint account and the receipt of the survivors or the last survivor of them or of the successor or personal representative of the last survivor shall be a complete discharge. Cap 219 s 49 Action for possession of land by mortgagor (1) A mortgagor under any mortgage (whether effected before or after the commencement of this section) entitled for the time being to the possession or receipt of the rents or profits of any land in respect of which no notice has been given by the mortgagee of his intention to take possession or to enter into the receipt of the rents and profits of that land may sue for such possession, or for the recovery of the rents and profits, or to prevent or recover damages in respect of any trespass or other wrong relating to that land, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. (2) This section does not affect the power of the mortgagor, apart from this section, in right of the legal estate or otherwise, to take proceedings in his own name. [cf. 1925 c. 20 s. 98(1) U.K.] Cap 219 s 50 Power to appoint a receiver (1) There shall be implied in any legal charge or equitable mortgage by deed, where the mortgage money has become due, a power exercisable in writing by the mortgagee and any person entitled to give a receipt for the mortgage money on its repayment to appoint a receiver or receivers of the mortgaged land and the income thereof, to remove any receiver appointed and appoint another in his place. (2) Any receiver so appointed will be deemed the agent of the mortgagor and the mortgagor will be solely responsible for the receiver's acts and defaults. (3) Any receiver so appointed may act in his own name or the name of the mortgagor. (4) Where 2 or more receivers are appointed, the appointment shall be deemed to be a joint and several appointment. (5) The mortgagee may, from time to time, fix the remuneration of the receiver and the receiver shall be entitled to retain out of any money received by him that remuneration and all costs, charges and expenses properly incurred by him as a receiver. (6) Without prejudice to the powers mentioned in the Fourth Schedule, the receiver shall have power to demand and recover all the land of which he is appointed receiver and the income thereof, by action, distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts accordingly for the same. (Amended 31 of 1988 s. 17) (7) A person paying money to the receiver shall not be concerned to inquire whether any event has happened to authorize the receiver to act. (8) The provisions of this section are subject to contrary intention expressed in the mortgage deed and may be varied or extended by the mortgage deed, and, as so varied or extended, shall have effect as if contained in this Ordinance. (9) This section shall not apply to any mortgage executed before the commencement of this section. Cap 219 s 51 Powers of mortgagee and receiver (1) Unless the contrary intention is expressed, there shall be implied in any legal charge or equitable mortgage by deed, the powers, exercisable by the mortgagee, a receiver (acting personally or through their agents) and any person entitled to give a receipt for the mortgage money on its repayment, mentioned in the Fourth Schedule. (2) Any power exercisable under a mortgage shall be subject to any prior estates, interests and rights to which the mortgaged land is subject. (3) No power of sale shall empower a mortgagee or a receiver under an equitable mortgage, by virtue of that mortgage only, to assign the legal estate in the mortgaged land. (4) The powers implied by subsection (1), and the provisions of the Fourth Schedule relating to the exercise of those powers may be varied or extended by the mortgage deed and, as so varied or extended, shall have effect as if contained in this Ordinance. (5) This section shall not apply to any mortgage executed before the commencement of this section. Cap 219 s 52 Protection of purchaser Where a sale is made under a mortgage, the title of the purchaser shall not be affected by the fact that no case had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised; but any person who suffers loss through an unauthorized, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising the power. Cap 219 s 53 Sale by mortgagee (1) Where a mortgagee or receiver sells under an express or statutory power of sale, the assignment shall operate- (Amended 31 of 1988 s. 18) (a) to assign to the purchaser the mortgagor's estate in that land, subject to any other mortgage having priority to the mortgage under which the sale is made; and (b) to discharge that land from the mortgage under which the sale is made and any subsequent mortgage.(2) Where a mortgagee obtains an order of foreclosure absolute, that order shall (unless it otherwise provides) operate- (a) to assign to the mortgagee the mortgagor's estate in the mortgaged land, subject to any other mortgage having priority to the mortgage under which the foreclosure order was obtained; and (b) to discharge that land from the mortgage under which the foreclosure order was obtained and any subsequent mortgage. [cf. 1925 c. 20 s. 89 U.K.] Cap 219 s 54 Application of money received Any money received by a mortgagee or a receiver from the sale or other dealing with the mortgaged land or any security comprised in the mortgage shall be applied according to the following priority- (a) in discharge of all rent, taxes, rates and other outgoings due and affecting the mortgaged land; (b) unless the mortgaged land is sold subject to a prior incumbrance, in discharge of that prior incumbrance; (c) in payment of the receiver's lawful remuneration, costs, charges and expenses and all lawful costs and expenses properly incurred in the sale or other dealing; (d) in payment of mortgage money, interest and costs due under the mortgage,and any residue shall be paid to the person who, immediately before any sale or other dealing, was entitled to the mortgaged land or authorized to give a receipt for the proceeds of the sale of that land. [cf. 1925 c. 20 ss. 105 & 107(2) U.K.] Cap 219 s 55 Mortgagee's receipt (1) A receipt in writing of a mortgagee or a receiver shall be a sufficient discharge for any money arising under a power of sale or for any money or security comprised in the mo