CONVEYANCING ACT 1911 - SECT 3 Powers (with a view to the grant of an authorised lease) for mortgagor and mortgagee in possession to accept surrenders of leases.

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CONVEYANCING ACT 1911 - SECT 3

Powers (with a view to the grant of an authorised lease) for mortgagor and mortgagee in possession to accept surrenders of leases.

3.(1) For the purpose only of enabling a lease, authorised under section
eighteen of the Act of 1881, as varied by this section, or under any agreement
made pursuant to section eighteen aforesaid, or by the mortgage deed (in this
section referred to as an authorised lease) to be granted, a mortgagor of land
while in possession shall, in like manner as if the legal estate were vested
in him and as against every incumbrancer, have, by virtue of this Act, power
to accept from time to time a surrender of any lease of the mortgaged land or
any part thereof comprised in the lease, with or without an exception of all
or any of the mines and minerals therein, or in respect of mines and minerals,
or any of them, and, on a surrender of part only of the land or mines and
minerals leased, the rent may be apportioned.

(2) For the same purpose, a mortgagee of land while in possession shall, in
like manner, and as against all prior or other incumbrancers, if any, and as
against the mortgagor, have, by virtue of this Act, power to accept from time
to time any such surrender as aforesaid.

(3) On a surrender of part only of the land or mines and minerals leased, the
original lease may be varied, provided that the lease when varied would have
been valid as an authorised lease if granted by the person accepting the
surrender; and, on a surrender and the making of a new or other lease, whether
for the same or for any extended or other term, and whether subject or not to
the same or to any other covenants, provisions, or conditions, the value of
the lessee's interest in the lease surrendered may, subject to the provisions
of this section, be taken into account in the determination of the amount of
the rent to be reserved, and of the nature of the covenants, provisions, and
conditions to be inserted in the new or other lease.

(4) Nothing in this section shall, where any consideration (except an
agreement to accept an authorised lease) for the surrender is given by or on
behalf of the lessee to or on behalf of the person accepting the surrender,
authorise a surrender to a mortgagor without the consent of the incumbrancers,
or authorise a surrender to a second or subsequent incumbrancer without the
consent of any prior incumbrancer.

(5) No surrender shall, by virtue of this section, be rendered valid unless:

(a)An authorised lease is granted of the whole of the land or mines and
minerals comprised in the surrender to take effect in possession immediately
or within one month after the date of the surrender; and

(b)The term certain or interest granted by the new lease is not less in
duration than the unexpired term or interest which would have been subsisting
under the original lease if that lease had not been surrendered; and

(c)Where the whole of the land mines and minerals originally leased has been
surrendered, the rent reserved by the new lease is not less than the rent
which would have been payable under the original lease if it had not been
surrendered; or where part only of the land or mines and minerals has been
surrendered, the aggregate rents respectively remaining payable or reserved
under the original lease and new lease are not less than the rent which would
have been payable under the original lease if no partial surrender had been
accepted.

(6) A contract to make or accept a surrender under this section may be
enforced by or against every person on whom the surrender, if completed, would
be binding.

(7) Subsections (13), (16) and (17) of section eighteen of the Act of 1881
shall have effect as if they were re-enacted in this section and references to
the commencement of that Act shall, for the purposes of this section, be read
as references to the commencement of this Act.

(8) Nothing in this section shall prevent the mortgage deed from reserving to
or conferring on the mortgagor or mortgagee, or both, any further or other
powers relating to the surrender of leases; and any further or other powers so
conferred or reserved shall be exercisable, as far as may be, as if they were
conferred by this Act, and with the like results, unless a contrary intention
is expressed in the mortgage deed.

(9) Nothing in this section shall operate to enable a mortgagor or mortgagee
to accept a surrender which could not have been accepted by the mortgagor,
with the concurrence of all the incumbrancers, if this Act had not been
passed.

(10) For the purposes of this section, and of subsection (1) of section
eighteen of the Act of 1881, the expression "mortgagor" does not include an
incumbrancer deriving title under the original mortgagor.

(11) The powers of leasing and of accepting surrenders respectively conferred
by section eighteen of the Act of 1881, and this section, shall, after a
receiver of the income of the mortgaged property or any part thereof has been
appointed by a mortgagee, under that Act, and so long as the receiver acts, be
exercisable by such mortgagee instead of by the mortgagor, as respects any
land affected by the receivership, in like manner as if such mortgagee were in
possession of the land.

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Northern Irish Legislation

CONVEYANCING ACT 1911 - SECT 3